NF.ILI,    AND   CO.,    I'RINTKK.S,    KDINBURGH. 


<4»» 


■•^ 


THE  BEHRING  SEA  QUESTION. 


o 


NE  summer  afternoon,  in  1786,  a  weary  mariner  com- 
manding a  listless  crew  lay  becalmed  and  fogbound 
somewhere  in  Behring's  Sea.  His  quest  for  the  home  of 
the  fur-seal  had  been  long  and  fruitless.  Year  after  year,  for 
generations,  the  native  Aleutes  had  marked  the  passage 
of  countless  herds  through  the  channels  separating  those 
islands  which  stretch  like  a  long  beckoning  finger  from 
Alaska  to  the  confines  of  Asia.  Northward  the  seals 
flocked  in  the  spring,  and  in  autumn  back  again  to  the 
Southern  Sea,  but  the  secret  of  their  breeding-place  was 
well  kept.  To  find  it,  the  Russian  trading  companies, 
whose  indiscriminate  slaughter  had  wellnigh  extinguished 
the  race  of  sea-otters,  spent  eighteen  years  in  arduous  ex- 
ploration. South  of  the  Aleutian  Archipelago,  from  Oregon 
to  Japan,  the  prospect  of  renewing  that  gainful  traffic,  which 
in  another  hemisphere  had  freighted  Dutch  and  English 
argosies,  led  their  captains  over  endless  leagues  of  unprofit- 
able ocean.  They  sought  the  supposed  winter-quarters  of 
the  creatures.     But  one  man,  pondering  over  the  legends  of 

^  the  islanders,  noted  a  hint  of  some  islands  lying  to  the 

north  of  the  Archipelago,  and  fancied  it  might  point  to  their 
summer-home.  He  was  destined  to  solve  the  mystery,  and 
leave  his  name  upon  the  charts  of  the  world  for  a  memorial 
of  patient  search  rewarded.  That  afternoon  Gerassim 
Pribylov  and  his  idle  crew  heard,  through  a  thick  mantle 

,|j,  of  fog,  the  murmur  of  innumerable  seals  close  at  hand,  and 

when  the  air  cleared  after  three  weeks  of  twilight,  they  were 
able  to  effect  a  landing  upon  one  of  the  two  islands  which 


lO'JTSG  PROVINCIAL.  UiuiKA^-'V 

VICTORIA,  B.  C. 


0 


THE   15EHRING  SEA  QUESTION. 


formed  the  long-drcamt-of  breedirifj-ground.  Upon  the 
other  the  explorers  found  traces  of  some  earUcr  adventurers 
— "  embers  of  drift-wood,  a  pipe,  and  a  knife-handle  of  brass," 
the  torn  page,  it  may  be,  of  some  sad  sea-tale  that  has  never 
been  given  to  the  world.  Whoever  the  earliest  discoverers 
may  have  been,  Pribylov  and  his  crew  were  the  first  to  take 
effective  occupation  of  the  islands,  and  ever  since  they  have 
been  best  known  as  Pribylov's  group,  or  the  seal  islands  of 
Alaska.  Individually,  they  are  called  St  George  and  St 
Paul.  Though  only  a  pair  of  barren  islets  in  a  lone  sea 
enveloped  in  perpetual  summer  fog,  or  ravaged  by  winter 
storms,  they  constitute  the  richest  hunting-ground  ever  dis- 
covered by  the  fur-trader. 

The  Russian  -  American  Company,  organised  in  1799 
under  a  charter  from  the  Emperor  Paul,  exercised  through- 
out the  whole  region  of  North-West  America  a  jurisdiction 
nearly  as  independent  as  that  which  the  East  India  Com- 
pany once  enjoyed  in  India.  It  numbered  among  the 
shareholders  Russian  nobles,  high  government  officials, 
and  even  members  of  the  Imperial  family.  The  governor, 
commanding  a  military  and  naval  force,  swayed  the  des- 
tinies of  Alaska  from  New  Archangel,  now  called  Sitka,  of 
which  La  Pcrouse,  who  led  the  Erench  Expedition  of  1786, 
remarked  that  "  nature  seemed  to  have  created  at  the  ex- 
tremity of  America  a  port  like  that  of  Toulon,  but  vaster 
in  plan  and  accommodation."  The  charter  was  renewed 
yearly.  Einding  themselves  powerless  to  supplant  these 
great  corporations,  the  Americans  of  the  Pacific  coast,  led 
by  the  Senators  representing  California,  aimed  at  nothing 
less  than  buying  up  the  Russian  title  to  the  Alaskan 
peninsula  and  the  Aleutian  islands.  The  expediency  of 
this  step  had  been  urged  by  the  legislature  of  Washington 
Territory  in  1866  ;  and  in  March  of  the  next  year,  after  the 
briefest  negotiations,  the  treaty  of  cession  was  signed  by 
Baron  Stoeckcl  and  Mr  Seward.  Russia  ceded  all  the 
territory  and  dominion  then  possessed  by  her  on  the 
continent  of  America  and  in  the  adjacent  islands,  the  same 
being  contained  within  the  geographical  limits  therein  set 
forth,      (bee   Map.)      The    price    was    fixed    at  7,200,000 


4» 


4» 


THE  BEIIRING  SEA  QUESTION.  3 

dollars.  The  duty  of  recommending  the  ratification  of 
the  treaty  to  Congress  was  entrusted  to  Senator  Sumner, 
and  that  great  orator  discharged  the  office  in  a  speech 
so  comprehensive  that  a  contemporary  French  writer 
said  of  it  : — "  All  that  is  known  of  Russian-America 
has  just  been  presented  in  a  speech,  abundant,  erudite, 
eloquent,  poetic,  pronounced  before  the  Congress  of  the 
United  States."  Although  Congress  ajiproved  the  pur- 
chase by  an  almost  unanimous  vote,  there  were  many 
short-sighted  enough  to  deride  the  exchange  of  "  seven 
millions  of  hard  dollars  against  rocks,  icebergs,  and  acres 
of  snowy  wastes." 

Under  this  treaty  of  purchase  all  the  Russian  Govern- 
ment property,  public  buildings,  wharves,  and  Oie  like,  were 
transferred  to  the  United  States,  and  it  was  expressly 
declared  that  the  cession  was  free  and  unencumbered  by 
any  reservations  or  privileges  conceived  in  favour  of  any 
associated  companies.  Certain  buildings,  however,  as 
being  the  property  of  the  Russian  Fur  Company,  were 
reserved  ;  and  as  to  these  Prince  Matsukoff,  who  was  at 
once  the  representative  of  the  Russian  Government  and 
the  governor  of  the  company,  proposed  to  negotiate  with 
the  United  States  Commissioner.  The  latter,  however,  very 
properly  considered  that  his  official  position  precluded  him 
from  treating  for  the  private  purchase  of  property  so  inti- 
mately connected  with  the  territory  which  was  in  course 
of  transfer  to  his  Government.  His  private  secretarj/, 
Mr  Hutchinson,  holding  himself  untrammelled  by  these 
considerations,  concluded  a  bargain  whereby  he  acquired 
the  whole  property  of  the  Russian  Fur  Company.  At 
Victoria  (British  Columbia),  whither  he  had  gone  to 
arrange  for  taking  possession  of  the  seal  islands,  he  met 
one  Mr  Kohl,  with  whose  aid  he  constituted  the  famous 
firm  of  Hutchinson,  Cole  &  Co.  Thinking  they  had  an 
exclusive  right  to  the  Pribylov  Islands,  they  directed  their 
first  expedition  thither,  but  found  them  occupied  by  ex- 
perienced sealers  under  one  Captain  Morgan.  The  rival 
parties  came  to  an  agreement  to  divide  the  season's  catch, 
and  their  union   enabled   them   to   repel   another   scaling 


THE   I5EIIRING  SEA  QUESTION. 


party,  headed  by  the  Russian  Vice-Consul  from  Honoluhi. 
In  1S70  an  Act  of  Congress  was  passed  for  the  protection 
of  the  trade,  which  seemed  to  be  falUng  a  prey  to  indis- 
crimin;.te  competition.  It  was  declared  unlawful  "  to  kill 
any  fur-seal  upon  the  islands  of  St  George  and  St  Paul,  or 
in  the  waters  adjacent  thereto,  except  during  the  months  of 
June,  July,  September,  and  October  in  each  year."  The 
lawful  take  was  limited  to  75,000  per  annum  upon  the 
former  island,  and  25,000  upon  the  latter.  The  Secretary 
of  the  Treasury  was  by  the  same  statute  empowered  to  let 
"  the  right  to  engage  in  the  business  of  taking  fur-seals  "  on 
the  islands  to  responsible  parties  for  a  rental  not  under 
50,000  dollars  per  annum.  A  revenue  tax  of  2  dollars  was 
also  laid  upon  each  fur-seal  skin  taken  and  shipped  from 
the  isln  ds  during  the  continuance  of  the  lease.  Mean- 
while the  coalition  of  Hutchinson,  Cole  &  Co.  with  Morgan's 
party  had  developed  into  the  Alaska  Commercial  Company, 
which  in  kS/O  (the  same  year  with  the  passing  of  the  Act, 
and  within  one  month  of  its  final  approval)  obtained  a  lease 
of  the  islands  for  twenty  years  at  a  rent  of  55,000  dollars, 
paying  also  2  dollars  62  cents  per  skin.  It  is  said  that  the 
company  was  aided  by  powerful  political  influence  to  secure 
this  bargain.  It  certainly  seems  that  a  very  brief  period 
was  allowed  for  public  competition.  Under  this  contract  it 
is  estimated  that  the  company  paid  to  the  United  States 
Treasury  315,000  dollars  a  year,  "which,  after  paying  all 
the  expenses  of  the  territory,  yields  more  than  4  per  cen*-. 
per  annum  on  the  purchase  -  money  paid  to  Russia  for 
Alaska."  The  company  thus  occupies  the  Pribylov  Islands 
by  virtue  of  a  title  from  Congress.  It  also  holds  leases  of 
certain  other  islands  from  the  Russian  Government;  but  it 
controls,  by  virtue  of  no  title  but  the  predominance  of  its 
own  power  and  wealth,  the  fur-trade  of  a  vast  extent  of  sea 
and  land.  Its  action  has  been  graphically  described  by  an 
American  mercantile  firm  : — "  This  company,  one  of  the 
most  stupendous  organisations  that  ever  existed  in  this 
country,  has  taken  possession  of  and  assumed  sovereign 
power  over  the  most  valuable  fisheries  of  the  whole  United 
States  ;  and  without  shadow  of  right  or  authority,  except  a 


1 


<3i» 


THE  BEHRING   SEA  QUESTION. 


5 


J 
^ 


lease  permitting  it  to  kill  ioo,cxx)  seals  upon  two  small 
islands,  has  taken  possession  and  control  not  only  of  the 
territory,  but  also  of  a  vast  sea  3,000  miles  long  by  2,700 
miles  wide,  has  made  itself  the  suzerain  of  the  Government, 
and  impressed  into  its  service  the  officers  and  agents  of  the 
Government  to  maintain  its  possession.  Alexander  the 
Great  was  not  a  robber  although  he  absorbed  kingdoms, 
and  the  Alaska  Commercial  Company  is  not  a  pirate 
although  it  has  absorbed  Alaska  and  an  ocean." 

In  August  1886  the  Admiralty  Office  received  the  fol- 
lowing telegram,  despatched  by  Rear  -  Admiral  Sir  M. 
Culme-Scymour  from  Victoria,  British  Columbia — "Three 
British  Columbian  seal  schooners  seized  by  United  States 
Revenue  cruiser  Corwin,  Behring's  Straits,  seaward  70  miles 
from  off  the  land,  killing  female  seals,  and  using  fire-arms 
to  do  it,  which  they  have  done  for  three  years  without 
interference,  although  in  company  with  Convin."  This 
brief  message  contains  the  essence  of  many  pages  of  de- 
spatches in  which  the  facts  of  the  seizures  are  fully  narrated. 
The  three  schooners,  named  respectively  the  Carolina,  the 
Onzmni,  and  the  Thornton,  were  fitted  out  in  Victoria, 
British  Columbia,  for  the  capture  of  seals  in  the  waters  of 
the  Northern  Pacific  Ocean,  adjacent  to  Vancouver's  Island, 
Queen  Charlotte  Islands,  and  Alaska.  After  their  capture 
they  were  taken  to  Ounalaska,  and  laid  up  there.  The 
captains  and  the  mates  were  taken  to  Sitka,  and  tried 
before  a  District  Judge.  His  charge  to  the  jury  amounted 
to  this:— By  the  treaty  of  1867,  the  United  States  acquired 
Alaska  and  the  eastern  part  of  Behring's  Sea,  in  which 
the  islands  of  St  Paul  and  St  George  lie.  The  American 
law  has,  by  special  statute,  forbidden  the  killing  of  fur- 
seals  upon  these  islands,  and  in  the  waters  adjacent  thereto. 
If,  therefore,  the  accused  have  killed  seals  in  these  waters, 
they  are  liable  to  the  penalties  imposed  by  the  Act.  The 
captains  were  sentenced  to  suffer  imprisonment  for  thirty 
days,  and  to  pay  a  fine  of  500  dollars,  the  mates  to  a  like 
term  of  imprisonment  with  300  dollars  of  a  fine.  The  crews 
of  two  of  the  vessels  were  sent  to  San  Francisco,  and  there 
turned  adrift.     It  is  manifest  that  these  convictions  could 


THE  BEIIRING  SEA  QUESTION. 


not  have  been  obtained  unless  the  "  waters  adjacent "  to  the 
islands  had  been  held  to  include  the  open  sea,  at  least 
seventy  miles  from  their  shores. 

When  we  come  to  consider  the  lofty  and  able  arguments 
presented  by  the  American  counsel  to  the  Arbitration 
Court ;  when  we  hear  Mr  Phelps  contending  that  even  the 
great  principle  that  the  high  seas  are  free  to  all  men  must 
yield  to  his  country's  claim,  and  Mr  Carter  urging  that  the 
Court  must  rise  beyond  mere  consuetudinary  law  and  invoke 
the  law  of  nature,  it  will  be  well  to  have  clearly  in  view  the 
grounds  upon  which  their  judges  rested  their  confident 
decisions.  The  seizure  of  foreign  vessels  and  the  conviction 
of  foreign  seamen  were  based  confessedly  upon  their  own 
municipal  enactments.  The  indictment  in  the  case  of  the 
W.  P.  Sayward  ran  : — "  George  R.  Ferry  and  A.  Laing  (the 
master  and  mate)  are  accused  ...  of  the  crime  of  kill- 
ing fur  seals  within  the  waters  of  Alaska  territory,  committed 
as  follows : — The  said  George  R.  Ferry  and  A.  Laing  on 
the  8th  day  of  July  1887,  in  the  District  of  Alaska  and 
within  the  jurisdiction  of  this  Court,  to  wit,  in  Behring's  Sea, 
within  the  waters  of  Alaska  territory,  did  kill  ten  fur-seals, 
contrary  to  the  statutes  of  the  United  States,  in  such  case 
made  and  provided,  and  against  the  peace  and  dignity  of  the 
United  States  of  America."  ^  The  process  was  not  brought 
before  a  prize  tribunal  for  adjudication,  as  in  a  matter  where 
international  law  was  to  be  administered,  but  was  prosecuted 
before  an  ordinary  District  Judge,  who  applied  the  ordinary 
municipal  statutes.  It  is  true  that  he  seems  to  have  felt 
the  necessity  of  explaining  in  some  way  how  the  term 
"  waters  of  Alaska  "  could  be  interpreted  so  as  to  include 
the  open  sea.  He  accordingly  directed  the  jury  in  his 
charge  that  all  the  waters  within  the  boundary  set  forth  in 
the  Treaty  of  1867 — the  western  boundary — were  to  be 
considered  as  covered  by  that  designation.  This  was  an 
invocation  of  a  description  so  vague  as  to  be  meaningless, 
for  the  Treaty,  as  will  be  shown  below,  conveys  no  sea  and 
contains  no  termini  habiles  for  delimiting  any  sea.  But  for 
the  present  purpose  it  is  enough  that  the  indictment  was 
^  See  sections  1956,  i960,  and  1961  of  the  U.S.  Revised  Statutes. 


THE  BEHRING  SEA  QUESTION.  7 

based  upon  nothing  else  than  the  provisions  of  the  muni- 
cipal law.  There  never  was  a  plainer  case  of  deliberate 
assumption  of  municipal  jurisdiction.  After  convicting  the 
unhappy  mariners,  and  despoiling  the  owners  upon  such 
grounds,  it  is  only  with  an  ill  grace  that  the  American 
Government  can  turn  round  and  pose  as  the  upholders  of 
an  unwritten  natural  law.  Then  the  vessel  was  restored  to 
the  owners  upon  condition  that  they  prosecuted  an  appeal 
to  the  Supreme  Court  of  the  United  States  from  the  Alaska 
District  Court,  and  granted  bond  to  provide  for  the  con- 
tingency of  the  appeal  being  unsuccessful.  But  the  mere 
act  of  giving  such  a  bond  involved  the  admission  that  the 
Courts  of  the  United  States  had  jurisdiction  in  regard  to 
the  seizure,  and  that  the  municipal  law  of  the  United  States 
applied  to  a  vessel  seized  for  plying  her  trade  in  waters  over 
which  the  Executive  and  Judiciary  of  the  United  States 
have  and  can  have  no  effectual  control.  Nor  can  it  be 
pleaded  that  the  rash  ignorance  of  a  District  Judge  alone 
pledged  the  United  States  to  maintain  this  high  ground. 
Five  years  afterwards,  when  the  Sayiuard  appeal  came 
before  the  Supreme  Court  at  Washington,  there  arose  the 
fairest  opportunity  for  reconsidering  the  constitutional  ques- 
tion whether  the  seizure  was  not  grossly  ultra  vires  of  their 
officers.  Then  was  the  occasion  for  considering,  upon  general 
and  lofty  grounds,  whether  American  revenue  cruisers  were 
entitled  to  molest  fishermen  following  their  lawful  occupa- 
tion on  the  high  seas,  for  considering  whether  those  fisher- 
men were  properly  compelled  to  seek  redress  in  the  courts 
of  a  foreign  country,  for  considering  whether  the  American 
courts  could  have  any  more  rightful  cognisance  of  the  wrong 
\  charged  against  them  than  the  courts  of  any  other  foreign 

ti  country.     It  is  quite  true  that  the  application  before  the 

Court  was  not,  properly  speaking,  an  appeal.  It  was  a 
motion  for  a  "  writ  of  prohibition,"  the  object  of  which  it  is 
presumed  was  to  annul  the  operation  of  the  District  Court 
judgment.  But  the  Supreme  Court  fled  from  the  real  ques- 
tion, and  held  that,  as  the  owners  did  not  ab  initio  question 
the  jurisdiction,  the  application  was  bad.  On  the  mere 
technical  ground  that  the  objection  to  the  jurisdiction  did 


8 


THE  BEHRING  SEA  QUESTION. 


not  appear  on  the  face  of  the  record,  they  threw  away  the 
opportunity  of  basing  their  action  on  wider  principles  than 
the  mere  suppression  of  poaching  on  American  preserves. 
They  did  so  at  the  very  moment  when  their  Secretary  of 
State  was  putting  his  hand  to  the  Arbitration  Treaty,^  and 
instituting  a  tribunal  before  which  the  record  of  a  happier 
ratio  decidendi -wowXA  assuredlyhave  stood  them  in  good  stead. 
To  the  protests  of  Great  Britain  and  Canada  against  the 
assertion  of  sole  sovereignty,  Mr  Bayard,  even  in  January 
1887,  could  only  reply  that  he  had  not  been  placed  in  pos- 
session of  that  accurate  information  which  would  justify  his 
coming  to  a  decision  upon  the  question.  Further  delay  in 
the  diplomatic  correspondence  made  the  Canadian  sealers 
anxious  to  ascertain  whether  it  would  be  prudent  to  fit  out 
vessels  for  the  season  of  1887.  In  the  absence  of  any  ex- 
plicit assurance  as  to  the  United  States'  intentions,  the 
sealers  drew  their  own  conclusions  from  Mr  Bayard's 
despatch  of  3rd  February  1887.  It  announced  that, 
"without  conclusion  at  this  time  of  any  questions  which 
may  yet  be  found  to  be  involved  in  these  cases  of  seizure, 
orders  have  been  issued  by  the  President's  direction  for  the 
discontinuance  of  all  pending  proceedings,  the  discharge  of 
the  vessels  referred  to,  and  the  release  of  all  persons  under 
arrest  in  connection  therewith."  At  this  juncture,  a  failure 
occurred  in  the  machinery  of  the  American  Executiv^e  that 
contrasts  strongly  with  the  promptitude  shown  immedi- 
ately before.  The  United  States  Marshal  for  the  district 
of  Alaska  took  no  action  upon  these  peremptory  orders. 
One  version  of  the  story  has  it  that  the  District  Judge, 
conceiving  the  telegraphic  despatch  to  be  a  forgery,  took 
it  upon  himself  to  rescind  the  order  he  had  transmitted  to 
the  Marshal.  Another  account  bears  that  the  Judge,  as 
late  as  July,  admitted  that  he  had  heard  some  rumour 
about  this  despatch  before,  but  declared  that  nothing  of 
the  kind  had  reached  either  himself  or  the  Marshal.  Be 
that  as  it  may,  no  steps  were  taken  for  the  release  of  the 
vessels,  and  even  in  September  there  they  lay  worm-eaten 
and  damaged  upon  the  beach  at  Ounalaska.     That  this 

^  See  Appendix. 


., 


THE  BEHRING  SEA  QUESTION. 


oflRcer  should  have  assumed  that  an  order  issued  from 
Washington  in  the  name  of  the  Attorney-General  —  an 
order  touching  a  matter  of  international  import — was  a 
mere  invention  ;  that  he  should  have  allowed  eight  months 
to  pass  without  making  any  attempt  to  verify  his  assump- 
tion, would  be  incredible,  were  it  not  that  the  equally 
marvellous  counterpart  of  the  incident  is  established  beyond 
a  doubt.  We  find  the  American  Secretary  of  State  himseK 
showing  not  the  slightest  perturbation  over  the  miscarriage 
of  the  President's  command,  and  contenting  himself  with  a 
tardy  renewal  of  the  order,  and  a  curt  expression  of  regret 
towards  the  injured  State.  Queer  lapses  like  these  lend  an 
air  of  truthfulness  to  the  vivid  pictures  drawn  by  some 
American  writers  to  show  the  all-pervading  political  in- 
fluence of  the  Alaska  Company. 

The  British  Columbians,  viewing  Mr  Bayard's  announce- 
ment as  a  departure  from  the  policy  of  repression,  sent 
thirteen  vessels  to  the  sealing-grounds  in  the  summer  of 
1887.  Six  of  them  were  seized.  Of  these  the  W.  P.  Say- 
ward  became  the  most  noted.  She  commenced  sealing  in 
the  Pacific  Ocean,  but,  on  entering  Behring's  Sea,  was  pre- 
vented by  constant  fog  from  capturing  a  single  seal.  Thirty 
miles  from  land,  however,  she  was  seized  and  taken  in  tow 
to  Ounalaska,  and  thence  to  Sitka.  The  vessel  was  left  in 
charge  of  the  United  States  officers,  the  crew  being  allowed 
to  remove  nothing  but  their  clothing.  The  Indians  who 
formed  part  of  the  crew  were  left  to  find  their  way  as  best 
they  could  to  their  homes,  700  miles  distant.  The  master 
and  mate  were  bound  over  to  appear  for  trial  on  22nd 
August.  They  attended  accordingly,  and  day  by  day 
thereafter  till  the  9th  of  September,  when,  without  having 
been  tried  upon  any  charge  whatever,  they  were  uncondi- 
tionally released.  Nor  were  these  stern  measures  meted 
out  to  foreigners  alone.  Schooners  owned  by  Americans, 
and  registered  under  the  American  flag,  were  subject  to 
the  same  treatment.  The  San  Diego,  owned  in  San  Fran- 
cisco, was  seized,  taken  to  Sitka  and  condemned,  her  cargo 
of  seal  skins  taken  in  the  open  sea  was  confiscated,  and  her 
owners'  petition  for  redress  ignored. 


10 


THE  BEHRING  SEA  QUESTION. 


Hear  the  plaintive  accents  of  Americans  pleading  for 
freedom  for  their  own  fishermen  :  "  They  wish  to  explore 
the  waters  of  Behring's  Sea  and  the  Arctic  Ocean.  They 
believe  that  they,  as  American  citizens,  have  a  right  to  fish 
or  hunt  in  the  American  waters  of  the  Behring's  Sea  out- 
side of  three  nautical  miles  from  any  island  or  the  main- 
land of  Alaska.  They  believe  that  William  H.  Seward  did 
not  purchase  Alaska  for  the  Alaska  Commercial  Company, 
but  for  the  whole  nation.  They  demand,  as  a  right,  that 
they  be  permitted  to  pursue  their  honourable  business  in 
the  American  waters  of  the  North  Pacific,  Behring's  Sea, 
and  the  Arctic  Ocean,  without  being  treated  as  criminals, 
and  hunted  down  and  seized  and  imprisoned  by  the 
piratical  Revenue  cutters  of  the  United  States,  at  the 
dictation,  and  for  the  sole  benefit  of,  the  Alaska  Com- 
mercial Company." 

One  hesitates  to  quote  further  from  American  denuncia- 
tions of  their  own  national  policy,  because  Mr  Phelps  has 
wept  bitterly  over  them.  He  tells  his  countrymen  through 
his  tears  that  all  their  arguments  are  carefully  filed  in  the 
pigeon-holes  of  the  British  Foreign  Office,  and  that  Ameri- 
can diplomatists  are  faced  at  every  turn  with  shafts  drawn 
from  American  quivers.  How  wise  are  the  English!  he 
cries  ;  not  a  word  is  published  in  the  British  press,  not  an 
article  in  a  Review  is  written  to  impede  the  march  of  Lord 
Salisbury's  argument.  Mr  Phelps  might  have  gone  further, 
and  added  that  not  a  single  foreign  writer  or  diplomatist  has 
found  a  good  word  to  say  for  the  American  case.  It  is 
perhaps  to  be  regretted  that  his  compliment,  if  meant  to 
ascribe  a  general  attitude  of  patriotic  reticence  to  our  own 
press,  must  be  disclaimed.  Nowhere  in  the  world  do  we 
find  journalists  so  ready  to  impugn  the  foreign  policy  of 
their  own  State  as  are  those  of  England.  If  it  be  other- 
wise in  this  instance,  it  must  be  due  to  some  inherent  quality 
of  the  American  claims.  But  this  dread  of  public  discus- 
sion is  worthy  neither  of  Mr  Phelps  nor  of  the  question  in 
hand.  The  rash  announcement  of  preliminaries  may,  no 
doubt,  stop  the  ratification  of  a  treaty.  For  example,  had 
some  indiscreet  official  at  the  American  Legation  revealed 


THE  BEHRING  SEA  QUESTION. 


11 


the  secret  assurance,  which,  as  will  be  seen  immediately, 
was  given  by  the  United  States  Minister  in  1888,  there 
might  have  been  some  cause  for  complaint,  but  in  a  debate 
where  the  issue  depends  upon  the  examination  of  historical 
facts  and  of  legal  precedents,  it  is  surely  puerile  to  shun  the 
light  of  free  criticism. 

Before  the  season  of  1888  opened,  it  was  rumoured  that 
British  sealers  were  fitting  out  and  were  arming  to  resist 
capture.  At  this  ijoint  another  blot  disfigures  the  Ameri- 
can record.  The  United  States  Minister  had  an  interview 
with  Lord  Salisbury  on  3rd  April  1888,  at  which  he  read 
this  extract  from  a  private  letter  he  had  received  from  Mr 
Bayard, — "  I  shall  advise  that  secret  instructions  be  given 
to  American  cruisers  not  to  molest  British  ships  in  Bchring's 
Sea  at  a  distance  from  the  shore,  and  this  '-  n  the  ground 
that  the  negotiations  for  the  establishment  of  a  close  time 
are  going  on."  The  Minister  added  that  it  was  very  de- 
sirable that  the  step  should  not  become  public,  as  it  might 
give  encouragement  to  those  who  were  destroying  the  fish- 
ery. In  point  of  fact,  these  orders  were  obeyed,  and  during 
the  season  of  1888  the  sealers  were  not  interfered  with. 
But  in  1889,  without  a  word  of  warning  that  the  policy  of 
the  preceding  season  was  to  be  reversed,  the  seizures  began 
anew,  and  not  a  word  of  explanation  of  the  volte-face  was 
ever  subsequently  vouchsafed. 

By  the  end  of  1889  the  British  claims  preferred  against 
the  United  States  for  compensation  in  respect  of  vessels 
seized  had  amounted  to  upwards  of  500,000  dollars,  irre- 
spective  of  the  personal  claims  of  the  crews  for  redress  for 
the  wrongs  they  had  suffered.  In  June  1890,  Her  Majesty's 
representative  at  Washington,  having  failed  to  obtain  any 
assurance  that,  pending  the  negotiations  between  the  two 
countries,  British  sealing  vessels  would  not  be  further  inter- 
fered with,  and  finding  that  cruisers  were  again  commis- 
sioned, lodged  a  formal  protest  against  their  action,  and 
intimated  that  we  should  hold  the  United  States  responsible 
for  the  consequences  that  might  ensue.  The  American 
Secretary  lashed  himself  into  fury.  He  protested  in  turn 
"  against  the  course  of  the  British  Government  in  authoris- 


12 


THE   BEIIRING  SEA  QUESTION. 


ing,  encouraging,  and  protecting  vessels  which  were  not  only 
interfering  with  American  rights  in  the  Hehring's  Sea,  but 
which  were  doing  violence  as  well  to  the  rights  of  the 
civilised  world."  He  reviewed  the  progress  of  the  inter- 
course between  the  Foreign  Office  and  the  American 
Minister,  between  November  18187  ^"d  April  1888,  upon 
the  subject  of  a  close  time,  and  declared  that,  after  the 
assurances  — "  the  pointed  assurances  " — given  by  Great 
Britain,  the  United  States  had  no  reason  to  doubt  that  the 
whole  dispute  touching  the  seal  fisheries  was  practically 
settled. 

The  charge  against  our  good  faith  is  worth  looking  into. 
What  were  these  assurances  ?  Mr  Phelps,  in  February 
1888,  pointed  out  that  the  female  seals,  in  their  migration 
northward  in  spring,  are  far  advanced  in  pregnancy  ;  that  it 
is  impossible  to  distinguish  the  male  from  the  female  in  the 
water ;  that  when  the  animals  are  killed  in  the  water  with 
firearms,  many  sink  at  once  and  are  never  recovered.  He 
consequently  suggested  that  a  close  time  should  be  agreed 
on — a  consummation  which  he  expected  would  suffice  to 
solve  the  whole  question.  He  urged  the  necessity  foi  the 
utmost  despatch,  in  order  to  preserve  the  fur-seals  from 
extermination,  but  he  admitted  that  no  more  than  the  first 
steps  towards  this  end  could  be  taken  meantime,  because 
under  the  peculiar  political  circumstances  of  America  at 
that  moment,  with  a  general  election  impending,  it  would 
be  hardly  practicable  to  conduct  any  negotiation  to  its  issue 
before  the  election  had  taken  place.  In  a  conversation 
which  took  place  between  Lord  Salisbury  and  Mr  Phelps 
on  the  22nd  of  the  same  month,  the  former  expressed  the 
entire  readiness  of  Her  Majesty's  Government  to  join  in  an 
agreement  with  Russia  and  the  United  States  to  establish  a 
close  time  north  of  some  latitude  to  be  fixed.  Mr  Phelps, 
writing  to  Washington  three  days  later  in  a  somewhat 
sanguine  mood,  appears  to  have  represented  that  we  had 
absolutely  and  finally  accepted  the  American  proposals  en 
bloc,  and  the  conversation  is  afterwards  dignified  by  the 
American  Secretary  with  the  title  of  "the  Agreement  of 
25th  February."     Lord  Salisbury,  besides  assenting  to  the 


THE   BEIIRING   SEA  QUESTION. 


13 


sufjgcstion  that  a  close  time  should  be  established,  suggested 
certain  regulations  to  be  embodied  in  a  Convention  to  that 
end,  but  he  was  most  careful  to  define  them  as  merely  pro- 
visional, and  intended  only  to  serve  as  a  basis  for  negotiation, 
without  definitively  pledging  either  party.  Let  it  be  granted 
that  he  also  undertook  to  draft  and  introduce  a  Hill  into 
Parliament  to  give  effect  to  the  Convention  when  it  had  been 
adjusted.  Mr  Phelps,  or  his  subordinate,  seems  to  have 
thought  it  possible  that  the  British  Government  could,  by 
an  Order  in  Council,  interdict  British  and  Canadian  sealers 
from  entering  Bchring's  Sea  as  promptly  as  the  President 
could  stop  the  action  of  his  cruisers.  In  order  to  remove 
all  possibility  of  misapprehension  on  this  head,  it  was 
explained  by  letter,  dated  only  a  few  days  after  this  inter- 
view took  place,  that  no  convention  could  be  concluded 
until  the  opinion  of  Canada  upon  it  should  have  been  ascer- 
tained ;  that  after  the  Convention  should  be  signed,  an  Act 
of  Parliament  would  be  necessary  to  enable  the  Executive 
to  act  upon  it ;  and  that  the  Order  in  Council  would  be  only 
the  machinery  for  bringing  the  Act  into  operation.  The 
American  Presidential  Election  then  supervened,  the  forma- 
tion of  a  new  Cabinet  at  Washington  hindered  further 
progress,  and  in  point  of  fact  serious  negotiations  were 
not  reopened  until  the  month  of  February  1890.  It  will 
hardly  be  credited  that  these,  and  nothing  more  than  these, 
were  the  grounds  upon  which  the  Secretary  concluded  that 
the  whole  dispute  was  practically  settled  !  These  were  the 
assurances  which  prompted  him  to  exclaim  with  indignation  : 
— "  Lord  Salisbury  would  have  dealt  more  frankly  if  in  the 
beginning  he  had  informed  Minister  Phelps  that  no  arrange- 
ment could  be  made  unless  Canada  concurred  in  it,  and  that 
all  negotiation  with  the  British  Government  direct  was  but 
a  loss  of  time."  This  was  the  agreement  between  the  repre- 
sentatives of  the  two  Powers  which  England  had  basely 
broken  off  simply  becauf  Canada  objected.  Suppose  we 
had  maintained  that  Mr  Bayard's  despatch  of  3rd  February 
1887,  directing  the  captured  vessels  to  be  discharged,  was 
an  avowed  abandonment  of  the  whole  American  position, 
and  suppose  we  had  wilfully  ignored  his  express  reservation 

B 


H 


THE    DEIIRING    SEA  QUESTION. 


of  all  questions  which  might  be  found  to  be  involved  in 
those  cases  of  seizure,  should  \vc  not  have  been  told,  and 
forcibly  told,  that  \vc  could  not  be  permitted  to  fasten  just 
upon  that  part  of  the  declaration  which  suited  our  argument, 
and  disregard  the  rest  ?  Our  sophistical  pretension  would 
have  been  deservedly  silenced  by  the  immediate  withdrawal 
of  the  United  States  from  the  whole  negotiations.  But  our 
assumption  would  have  been  no  more  unfair  and  unfounded 
than  is  the  American  inference  in  this  instance.  Not  the 
most  minute  examination  of  the  American  Secretary's  own 
despatch  will  reveal  one  single  point  on  which  any  agree- 
ment had  been  reached,  except  the  expediency  of  instituting 
some  regulations  for  the  protection  of  the  animals  during 
their  breeding  season.  We  arc  left  to  wonder  how  so  acute 
a  rcasoncr  cculd  attempt  to  raise  a  grave  charge  of  bad 
faith  upon  so  frail  a  foundation. 

But  since  it  was  our  deference  to  the  wishes  of  Canada 
that  excited  such  intense  disgust  in  the  American  official 
mind,  it  is  proper  to  examine  the  terms  of  the  Convention 
proposed  and  the  grounds  of  the  Canadian  objection.  Mr 
Bayard's  proposal  was  that  the  close  time  should  extend 
from  the  15th  of  April  to  the  ist  of  November  in  each  year, 
and  that  sealing  should  be  forbidden  in  the  waters  Ix'ing 
between  America  and  Russia  north  of  the  50th  degree  of 
north  latitude,  and  between  long.  160'  west  and  170  east  of 
Greenwich.  Now,  to  begin  with,  there  was  surel)'  something 
misleading  in  the  way  the  United  States  Minister  presented 
the  matter.  In  urging  that  an  agreed-on  close  time  would 
.solve  all  the  difficulties  of  the  question,  he  put  it  that  no 
attemi)t  had  been  matle  b)'  his  Government  to  stop  the 
fishing  during  the  time  it  was  legitimate.  That  may  be 
true  regarding  their  action.  But  the  fact  remains  that,  by 
the  express  enactment  of  the  United  States  statute-book,  no 
person  whatever  is  permitted  at  any  season  of  the  year  to 
kill  a  single  seal  in  the  waters  which  they  claim  as  a  private 
domain,  h'urther,  if  it  be  considered  that  the  seals  eiiter 
liehring's  Sea  in  May  and  leave  in  October,  it  is  evident 
that  so  far  as  the  interests  of  Canadian  sealers  were  con- 
cerned, the  close  time   might  as  well  have   been    fixed    to 


THE   BEIIRING   SEA  QUESTION. 


IS 


cover  the  twelve  months  between  ist  January  and  31st 
December.  Again,  this  proposal  takes  no  account  of  the 
powers  which  the  United  States  tacitly  reserved  to  them- 
selves to  continue  during  the  close  time  the  practice  of 
killing  the  seals  on  the  islands. 

In  the  early  stages  of  the  diplomatic  correspondence 
there  was  much  stress  laid  on  the  historical  record  of 
Russia's  sovereignty  in  this  region,  and  some  reference  was 
made  to  the  dicta  of  international  jurists  upon  the  doctrine 
of  marc  dansuiii.  President  Harrison  in  his  I\[essage  to 
Congress  of  1.S90  described  his  country's  claim  as  a '' pro- 
perty-right derived  from  Russia."  Russia  in  i82r,  being 
then  in  possession  of  both  shores  of  Ikhring's  Sea,  issued 
an  edict  in  which  she  undoubtedly  based  her  right  to 
restrict  the  liberties  of  foreign  vessels  in  that  sea  upon  the 
theory  that  it  was  land-locked.  It  was  r.ssumed,  both  by 
our  Foreign  Office  and  by  American  jurists,  that  the  present 
American  claim  rested  upon  the  same  basis,  and  both  set 
themselves  to  demolish  it.^  Ikit  in  the  end  Mr  IMaii  e 
vehemently  repudiated  that  inference  and  abandoned  the 
doctrine  in  express  terms.  How  it  came  about  that,  both 
on  this  side  of  the  Atlantic  and  on  the  other,  writers  so 
unkindly  attributed  the  use  of  this  rusty  weapon  to  the 
Washington  State  Department  does  not  very  clearly 
appear.  The  declamator\-  despatches  which  reached  us  from 
the  other  side  were  certainly  not  well  suited  to  convey  a  clear 
statement  of  a  legal  claim.  It  is  indeed  impo.ssible  not  to 
sympathise  with  Sir  Julian  I'auncefotc  when  he  exclaims,  so 
late  as  July  1S90,  that  he  has  .some  difficulty  in  clearl_\- 
apprehending,  even  after  all  the  correspondence  which  had 
taken  place,  the  precise  i)rop(xsition  of  law  on  which  the 
United  Stales  Govermnent  relies  in  justification  of  its  claim 
to  exclude  all  other  nations  from  the  fur-seal  fisher}-,  l^vcn 
in  icSfjr  Mr  Blaine  found  it  necessary  to  instruct  us  that 
"the  advisers  of  the   President  i\o  not  rely  as  justification 

'  Even  Mr  I'liulps  .ippciis  l(,  liavc  bciMi  nii>le(l,  for  wo  fmd  Iiiiii  wiiiina  ii, 
April  1S91  :— " 'I'lie  SccTfl.iry  of  .Slate  in  lii>  i.(irrc-.pnn(lciico  wiili  ilie  ilii'Jsii 
(invurnincnt  on  tl-,is  sulijwt  I1.1S  iiiiderlnken  In  niainlain  tli.nt  those  wnlers  are 
not,  p.s  lictween  tliat  country  and  the  United  States,  a  I'art  of  tile  ln'i;h  or  open 


16 


THE   BEHRING   SEA   QUESTION. 


for  the  seizure  of  British  ships  in  the  open  sea  upon   the 
contention  that  the  interests  of  the  seal  fisheries  give  the 
United  States  any  right  for  that  purpose  which,  according 
to  international  law,  it  would  not  otherwise  possess.     The 
Government  of   the  United  States  holds  that    the  owner- 
ship of   the  islands  upon  which  the  seals  breed,   that  the 
habit  of  the  seals  in  regularly  resorting  thither  and  rearing 
their  young  thereon,  that  their  going  out  from  the  islands 
in  search  of  food  and  regularly  returning  thereto,  and  all 
the  facts  and  incidents  of  their  relation  to  the  island,  cfive 
to  the  United  States  a  property-interest  therein  ;  that  this 
property-interest    was   claimed    and    exercised    by    Russia 
during  the  whole  period  of  its  sovereignty  over  the  land 
and    waters    of    Alaska ;    that    England    recognised    this 
property-interest   in  so   far  as   recognition    is    implied    by 
abstaining  irom  all  interference   with  it  during  the  whole 
period   of   Russia's   o'-'nership  of  Alaska,  and  during  the 
first   nineteen   years    of    the   sovereignty    of    the    United 
States."       It  is  undeniable  that  this  statement  shows  a  very 
different  complexion  of  the  case  from  that  originally  pre- 
sented, but  it  was  to  this  aspect  that  the  American  Counsel 
in  the  late  arbitration  mainlj-  devoted  their  attention.     Mr 
Carter,  indeed,  drew  a  touching  picture  of  the  tender  solici- 
tude which  the   United   States  had   always  shown  for  tne 
welfare  of  the  seals — a  picture  which  must  have  recalled  to 
the  minds  of  the  Arbitrators  his  countrymen's  well  known 
anxiety   for   the    protection   of  other   rare   species    in    the 
animal  world — a    loving  care  which   has  secured   a   lineal 
and  undiminished  succession  for  the  buffalo  and  the  beaver. 
It  is  therefore  necessary,  before  discussing  the  legal  bearing 
of  this  "  property-interest,"  or  the  validity  of  the  contention 
that  it  was  derived  from   Russia,  to  say  a  word  in  explana- 
tion of  the  seal-habits  and  of  the  Alaska  Company's  method 
of  taking  the  island-catch. 

'J1ie  female  seals  seek  tne  shores  of  the  islands  for  the 
purjjose  of  giving  birth  to  their  young,  'i'he  pups  are 
born  soon  after  the  mothers  land  in  May.  The  strongest 
bulls,  polygamous  in  '-.abit,  establish  their  rights  to  adequate 
harems  by  dint  of  hard  fighting  with  less  doughtj-  champions. 


THE  BEHRING   SEA  QUESTION. 


17 


They  maintain  their  posts  during  the  whole  summer,  driving 
off  every  male  that  seeks  to  cross  the  boundary  of  their 
seragh'os.  One-third,  however,  of  the  millions  which  line 
the  shores  are  bachelors.  These  are  males  under  six  years 
of  age.  The  old  bulls  jealously  exclude  them  from  the 
breeding-grounds,  and  leave  them  only  an  option  of  con- 
gregating on  the  beaches  where  no  cows  are,  or  upon  the 
higher  grounds  to  the  rear  of  the  family  resorts.  I.  is  this 
class  of  bachelors,  known  as  holluschickw,  which  the  natives 
and  the  employes  of  the  Alaska  Company  slaughter.  The 
method  is  thus  described  by  Professor  Elliott,  who,  in  1873, 
wrote  an  elaborate  monograph  upon  the  Seal  Islands.'  He 
is  the  chief  American  authority  on  the  subject,  and  one  who 
had  certainly  no  bias  against  the  Company.  "A  dozen 
Aleutes  running  down  the  sand-beach  of  linglish  Bay  in  the 
early  morning  of  some  June  day  v.ill  turn  back  from  the 
water  thousands  of  seals,  just  as  the  mould-board  of  a  plough 
lays  over  and  back  a  furrow  of  earth.  They  then  leisurely 
on  the  flanks  and  in  the  rear  of  this  drove  thus  secured, 
directing  and  driving  it  over  to  the  killing-grounds."  The 
seals  "are  urged  along  over  paths  leading  to  the  killing- 
grounds  with  very  little  trouble,  and  require  only  three  or 
four  men  to  guide  and  secure  as  many  thousands  at  a  time. 
They  are  permitted  frequently  to  halt  and  cool  off,  as  heat- 
ing them  injures  their  fur.  When  the  men  droj)  back  for  a 
few  moments,  that  awkward  shambling  and  scuffling  of  the 
march  at  once  ceases,  and  the  seals  stop  in  their  tracks  to 
fan  themselves  with  their  hind-flippers,  while  their  heaving 
flanks  give  rise  to  subdued  panting  sounds.  As  soon  as 
they  apparently  cease  to  gasp  for  want  of  breath  and  are 
cooled  off  comparatively,  the  natives  step  up  once  more, 
clatter  a  icw  bones  with  a  shout  along  the  line,  and  this  scal- 


'  It  is  true  that  an  luii^lish  reviewer  once  justly  said  of  tliis  wciik  :  — "  Tlie 
Ianj;iias;e  is  the  purest  .American — the  tonijue  lliat  our  descendanls  are  pcrliaps 
one  day  to  s|)eal<— hut  it  is  needless  (o  anticipate  an  evil."  \&  the  style  is 
gra|ihic  and  well  suited  to  the  sulijecl.  Mr  l^lliutl  is  sjiecially  happy  in  his 
epithets.  It  was  he  who  applied  to  (lie  .Meutian  islands  the  words  "  )irm 
pelagic  liouudary,"  ,-\  jihrasc  so  attractive  that  everyhudy  seems  to  enjoy  usins; 
it,  and  which  is  iierhajis  to  blame  for  the  vile  imputation  of  anliijuated  /iiaii- 
ciausitm  tenets  to  the  United  States'  diplomatists. 


i8 


THE   BEIIRINC   SEA  QUESTION. 


shamble  begins  again— their  march  to  death  and  the  markets 
of  the  world  is  taken  up  anew.     As  this  drove  progresses 
along  that  path  to  those  slaughtering-grounds,  the  seals  all 
move  in  about  the  same  way  ;  they  go  ahead  with  a  kind  of 
walking  step,  and    a   succession   of  starts,  spasmodic  and 
irregular,  made  every  few  minutes,  the   seals  pausing  to 
catch  their  breath,  making  as  it  were  a  plaintive  survey  and 
mute  protest.     Every  now  and  then  a  seal  will  get  weak  in 
the  lumbar  region,  then  drag  its  posteriors  along  for  a  short 
distance,  finally  drop  breathless  and  exhausted,  quivering 
and  panting,  not  to  revive  for  hours — days  perhaps — and 
often  never.     This  prostration  from  exhaustion  will  always 
happen,  no  matter  how  carefully  they  are  driven,  and  in  the 
longer  drives  as  much  as  3  or  4  per  cent,  of  the  whole  drive 
will  be  thus  dropped  on  the  road  ;  hence  I  feel  satisfied,  from 
my  observation  and  close  attention  to  this  feature,  that  a 
considerable  number  of  those  that  are  thus  rejected  from  the 
drove,  and  are  able  to  rally  and  return  to  the  water,  die 
.■•ubsequently  from  internal   injuries  sustained  on  the  trip, 
superinduced   by  this  over-exertion."      On    arrival    at   the 
killing-groundsthe  natives  brain  the  creatures  with  bludgeons. 
"  The  aim  and  force,"  says  Mr  Elliott,  "with  which  the  native 
directs  his   blow  determines   the  death  of  a  fur-seal.      If 
struck  direct  and  violently,  a  single  stroke  is  enough.     The 
seals'  heads    are   stricken    so   hard    sometimes   that    those 
crystalline   lenses  to  their  eyes  fly  out   from    the    orbital 
sockets  like    hail-stoncs  or   little   pebbles,  and    frequently 
struck  me  sharply  in  the  face,  or  elsewhere,  while  I  stood 
near  watching  a  killing-gang  at  work."     It  does  not  appear 
that  any  care  is  exercised   to  keep  the  slaughter   of  the 
bachelors  a  secret  from  their  happier  kinsfolk,  for  Mr  Elliott 
says : — "  We  see  the   Lagoon   rookery,  a  reach  of  ground 
upon  which  some  twenty-five  or  thirty  thousand  breeding- 
seals  come  out  regularly  every  year  during  the  appointed 
time,  and  go  through  the  whole  elaborate  system  of  repro- 
duction without  showing  the  slightest  concern  for  or  atten- 
tion  to  the  scene  directly  east  of  them,  and    across  that 
shallow  slough  not  80  feet  in  width.     There  are  the  great 
slaughtering  fields  of  St  Paul  Island  ;  there  are  the  sand 


THE   BEHRING  SEA  QUESTION. 


19 


flats  where  every  seal  has  been  slaughtered  for  years  upon 
years  back  for  its  skin  ;  and,  even  as  we  take  this  note,  forty 
men  are  standing  there  knocking  down  a  drove  of  two  or 
three  thousand  bachelors  for  their  day's  work,  and,  as  they 
labour,  the  whacking  of  their  clubs  and  the  sound  of  their 
voices  must  be  as  plain  to  those  breeding  seals,  which  are 
not  100  feet  from  them,  as  it  is  to  us  a  quarter  of  a  mile 
distant.  In  addition  to  this  enumeration  of  disturbances, 
well  calculated  to  amaze  and  dismay  and  drive  off  every 
seal  within  its  influence,  are  the  decaying  bodies  of  the  last 
year's  catch — seventy-five  thousand  or  eighty-five  thousand 
unburied  carcases — that  are  sloughing  away  into  the  sand 
which  two  or  three  seasons  from  now  Nature  will,  in  its 
infinite  charity,  cover  with  the  greenest  of  all  green  grasses." 
It  is  surely  clear  that  the  practical  effect  of  prohibiting 
seal-fishing,  or  "pelagic  sealing  "  as  i«-  is  called,  while  this 
work  went  on  ashore,  would  have  been  to  concede  the 
American  demands  and  shut  out  the  Canadian  claims.  The 
institution  of  a  close  time  on  the  lines  proposed  would  have 
given  the  Americans  all  the  sea  they  want,  all  the  time  they 
want,  and  the  benefit  of  a  close  season  debarring  everybody 
but  themselves. 

But  what  are  the  American  objections  to  pelagic  sealing } 
They  rely  upon  the  opinions  of  the  expert!:-  to  show  that  the 
process  is  so  destructive  that  it  will  bring  about  the  imme- 
diate extermination  of  the  species.  Of  these  authorities 
Professor  Elliott  is  the  chief  He  thus  proceeds  to  prove 
his  case  in  a  letter  written  to  Mr  Bayard  in  1887: — "As 
these  watery  paths  of  the  fur-seal"  (from  the  Aleutian 
passes)  "converge  in  Behring's  Sea,  they  in  so  doing 
rapidly  and  solidly  mass  together  thousands  and  tens  of 
thousands  of  widely  scattered  animals  (as  they  travel)  at 
points  50  or  even  100  miles  distant  from  the  rookeries  of 
the  Seal  Islands.  Here  is  the  location  and  the  opportunity 
of  the  pelagic  sealer.  Here  is  his  chance  to  lie  at  anchor 
over  the  shallow  bed  of  Behring's  Sea,  50  or  100  miles 
distant  from  the  Pribylov  group,  Vv'here  he  has  the  best 
holding-ground  known  to  sailors,  and  where  he  can  ride  in 
any  weather,  safely  swinging  to  his  cable.     .     .     .     He  has 


20 


THE  BEHRING  SEA  QUESTION. 


a  safe  and  fine  location  from  which  to  shoot,  to  spear,  and 
to  net  these  fur-bearing  amphibians,  and  where  he  can 
work  the  most  complete  ruin  in  a  very  short  time.  His 
power  for  destruction  is  still  further  augmented  by  the  fact 
that  those  seals  which  are  most  liable  to  meet  his  eye  and 
aim  are  female  fur-seals  which,  heavy  with  young,  are  here 
slowly  nearing  land,  reluctant  to  haul  out  of  the  cool  water 
until  the  day  and  hour  arrives  that  limits  the  period  of  their 
gestation.  The  pelagic  sealer  employs  three  agencies  with 
which  to  secure  his  quarry,  viz.,  he  sends  out  Indians  with 
canoes  and  spears  from  his  vessel ;  he  uses  rifle  and  ball, 
shot-guns  and  buckshot;  and  last,  but  most  deadly  and 
destructive  of  all,  he  spreads  the  gill-net  in  favourable 
weather.  With  gill-nets  underrun  by  a  fleet  of  sealers  in 
Behring's  Sea  across  these  converging  paths  of  the  fur- 
seal,  anywhere  from  3  to  lOO  miles  southerly  from  the  seal 
islands,  I  am  extremely  moderate  in  saying  that  such  a 
fleet  could  and  would  utterly  ruin  the  fur-seal  rookeries  of 
the  Pribylov  Islands  in  less  time  than  three  or  four  short 
seasons." 

It  cannot  be  denied  that  this  sketch  of  pelagic  sealing, 
drawn  to  convince  us  of  its  wanton  destructiveness  and  to 
excite  our  condemnation  of  those  engaged  in  it,  suffers 
greatly  from  being  placed  alongside  that  other  picture  of 
seal-killing  on  land.  The  seal  hunter  in  his  canoe  with  his 
spear  or  gun,  or  even  the  crew  of  the  schooner  with  their 
net,  seem  a  much  less  destructive  agency  than  the  men  with 
the  clubs  who  drive  the  animals  by  thousands  to  their 
killing-grounds.  It  is  certain  that  the  latter,  engaged  in  a 
work  that  requires  no  spark  of  courage,  exhibits  no  element 
of  skill,  suggests  no  sentiment  of  romance,  are  not  likely 
to  arouse  much  sympathetic  interest.  When  Mr  Phelps, 
throwing  all  stricter  arguments  behind  him,  appeals  to 
"  the  laws  of  all  civilised  nations  based  upon  the  ordinary 
dictates  of  humanity,"  we  cannot  forget  the  disgusting  scene 
of  brutality  and  butchery  at  English  Bay.  Civilisation  and 
humanity !  What  are  they  to  the  men  who  turn  into 
torture-grounds  and  shambles  the  very  spots  which  should 
be  sacred  to  the  rites  of  propagation  and  maternity  ?    What 


THE  BF.HRIXG  SEA  QUESTION. 


21 


veneration  for  those  dictates  can  those  men  cherish  who 
employ  the  semi-savage  Aleut  in  forcing  a  beast  that  is  half 
a  fish  to  flounder  over  miles  of  dry  land  ?  Professor  Elliott 
quotes  from  Ovid.  To  Ovid  let  him  go  once  more,  and 
mark  a  passage  he  has  missed  : 

Omnia  pontus  erat  :  det-rant  qiioque  littora  ponto. 

Occupat  hie  coiiem  :  cymba  sedet  alter  adunca, 

Et  ducit  renios  illic.  ubi  nuper  ararat. 

Ille  supra  segetes,  aut  mcrsae  culmina  villae 

Navigat  :  hie  summa  piscem  deprendit  in  ulmo 

Figitur  in  viridi  'si  Fors  tulit)  anchora  prato  ; 

Aut  subjecta  terunt  curvae  vineta  earinae 

Et,  modo  qua  graciles  gramen  carpsere  capellae 

Nunc  ibi  deformes  ponunt  sua  corpora  phocae. 

Metum.y  lib.  I.,  292-300. 

With  this  before  him,  the  Professor  might  have  de- 
nounced his  countrymen  for  seeking  to  bring  back  the 
age  of  Deucalion  and  Pyrrha,  for  trying  to  reproduce  {si 
parva  licet  coinponere  inagnis)  the  incidents  of  that  grand 
cataclysm,  which  threw  into  confusion  all  the  orderly  reign 
of  Nature. 

It  is  unnecessary  to  say  that  no  man  more  than  an 
Englishman  abhors  the  slaughter  of  any  wild  animal  during 
its  pregnancy.  It  was  simply  because  he  intimated  a  ready 
and  hearty  concurrence  in  the  American  desire  to  take 
measures  to  stop  this  that  Lord  Salisbury  found  it  assumed 
that  he  had  settled  the  whole  question.  But  even  if  the 
fishers  are  proved  guilty  of  unavoidably  killing  a  certain 
percentage  of  seal-mothers,  it  is  a  very  rash  assumption  that 
this  is  now  or  ever  will  be  sufficient  to  ruin  the  rookeries. 
In  all  the  historical  instances  adduced  of  seal-rookeries 
destroyed  by  indiscriminate  slaughter  in  the  South  Pacific 
Islands,  on  the  Falkland  Islands,  on  the  coasts  of  Chili  and 
South  Africa,  surely  never  could  the  operations  of  hunters 
10  or  20  miles  from  land  be  the  cause.  The  premises  laid 
down  by  Professor  Elliott  in  his  letter  of  1887  for  the 
conclusions  he  had  then  arrived  at  are  obviously  weak. 
"These  watery  paths  converging,"  he  says,  "rapidly  and 
solidly  mass  together  thousands  and  ten  thousands  of  widely 
scattered  animals."  What  can  he  mean  by  that  ?  If  he 
means  that  the  seals  travel  in  close-packed  droves,  he  can 


22 


THE  BEHRING  SEA  QUESTION. 


be  contradicted  out  of  the  mouth  of  the  Secretary  of  the 
United  States  Treasury,  who,  twenty  years  ago,  refused  to 
exclude  Australian  sealers,  and  justified  his  refusal  by 
quoting  an  expert's  opinion  that  pelagic  sealing  would  not 
pay,  "  inasmuch  that  the  seals  go  singly  or  in  pairs,  and  not 
in  droves,  and  cover  a  large  region  of  water  in  their  home- 
ward travel  to  these  islands."  If,  on  the  other  hand,  he 
means  what  he  says,  namely,  that  the  animals  are  widely 
scattered,  how  can  the  sealers,  even  with  the  dreaded  gill- 
nets,  work  the  wholesale  ruin  he  has  pictured  ?  The  seal  is 
notoriously  a  most  difficult  animal  to  take  at  sea  It  is  said 
that  2500  seals  is  an  exceptionally  good  catch  for  a  vessel 
carrying  twenty-one  men  during  a  season  of  seven  or  eight 
months — figures  which  of  themselves  are  enough  to  demon- 
strate the  real  skill  needed  by  the  seal-fisher,  and  the 
improbability  of  that  mode  of  capture  ever  exterminating 
the  species. 

But  Professor  Elliott,  himself,  has  lived  to  see  the  land 
operations  in  a  new  light.  As  special  agent  for  the 
American  Government,  he  was  despatched  to  the  islands  in 
1890,  and  in  a  letter  submitting  his  report  he  states  his 
recantation.^  "  I  can  see  now,  in  the  light  of  the  record  of 
the  work  of  sixteen  consecutive  years  of  sealing,  very  clearly 
one  or  two  points  which  were  wholly  invisible  to  my  sight 
in  1872-74.  I  can  now  see  what  that  effect  of  driving  over- 
land is  upon  the  physical  well-being  of  a  normal  fur-seal, 
and  upon  that  sight  feel  warranted  in  taking  the  following 
ground.  .  .  .  When  they  arrive  on  the  killing-grounds, 
after  four  or  five  hours  of  this  distressing  effort  on  their 
part,  they  are  then  suddenly  cooled  off  for  the  last  time 
prior  to  the  final  ordeal  of  clubbing  ;  then,  when  driven  up 


1  It  would  probably  be  unfair  to  give  credence  to  the  following  story  which 
professes  to  account  for  Mr  Elliott's  new  point  of  view.  "  Professor  Elliott  was 
formerly  the  paid  agent  in  Washington  of  the  Alaska  Fur  Seal  Company. 
When  the  sealing  contract  was  lost  by  that  company  and  given  to  the  North 
American  Company,  Professor  Elliott  made  use  of  every  opportunity  to  attack 
the  latter.  Not  knowing  this,  the  Secretary  of  the  Treasury  sent  him  as  an 
expert  to  the  seal  islands  ;  but  when  it  was  found  that  his  report  was  an 
attack  upon  the  North  American  Company,  Mr  Blaine  requested  Mr  Foster 
to  withhold  the  report  indefinitely." 


THE  BEHRING  SEA  QUESTION. 


23 


into  the  last  surround  or  '  pod,'  if  the  seals  arc  spared  from 
cause  of  being  unfit  to  take,  too  big  or  too  little,  bitten, 
&c.,  they  are  permitted  to  go  off  from  the  killing-ground 
back  to  the  sea,  outwardly  unhurt,  most  of  them,  but  I  am 
now  satisfied  that  they  sustain  in  a  vast  majority  of  cases 
internal  injuries  of  greater  or  less  degree,  that  remain  to 
work  physical  disability  or  death  thereafter  to  nearly  every 
seal  thus  released,  and  certain  destruction  of  its  virility  and 
courage  necessary  for  a  station  on  the  rookery,  even  if  it 
can  possibly  run  the  gauntlet  of  driving  throughout  every 
sealing  season  for  five  or  six  consecutive  years  ;  driven  over 
and  over  again,  as  it  is  during  each  one  of  these  sealing 
seasons.  Therefore  it  now  appears  plain  to  me  that  those 
young  male  fur-seals  which  may  happen  to  survive  this 
terrible  strain  of  seven  years  of  driving  overland,  are  rendered 
by  this  act  of  driving  wholly  worthless  for  breeding  purposes 
— they  never  go  to  the  breeding-grounds  and  take  up 
stations  there,  being  utterly  demoralised  in  spirit  and  in 
body.  With  this  knowledge,  then,  the  full  effect  of '  driving ' 
becomes  apparent,  and  that  result  of  slowly  but  surely 
robbing  the  rookeries  of  a  full  and  sustained  supply  of  fresh 
young  male  blood,  demanded  by  nature  imperatively  for 
their  support  up  to  the  standard  of  full  expansion  (such  as 
I  recorded  in  1872-74) — that  result  began,  it  now  seems 
clear,  to  set  in  from  the  beginning,  twenty  years  ago,  under 
the  present  system."  The  report  proves  that,  whereas  in 
1874  there  were  over  three  millions  of  seals  on  the  islands, 
they  had  fallen  in  1890  to  less  than  one  million,  and  infers 
that,  as  the  sea-catch  only  amounts  to  60,000,  pelagic  seal- 
ing cannot  be  held  responsible  for  the  whole  of  the  reduc- 
tion. One  is  at  a  loss  whether  more  to  admire  the  candour 
that  marks  the  true  man  of  science,  or  to  wonder  at  the 
short-sightedness  which  years  before  could  see  nothing  of 
the  tendency  of  this  brutal  method  of  capture.  To  any  man 
with  a  feeling  of  compassion  for  dumb  creatures,  or  even 
only  a  sportsman's  instinct  for  fair  play,  the  end  of  this 
revolting  practice  ought  to  have  been  clear  as  noonday. 
Professor  Elliott  pours  his  sarcasm  upon  the  Treasury 
agents  who  have  regularly  since   1874  reported  that  the 


■ 


24 


THE   I^EIIRING  SEA  QUESTION. 


rookeries  were  in  splendid  condition,  and  condemns  their 
purblindness  in  failing  to  note  the  diminution  in  the  supply 
of  young  males.  A  recollection  of  the  failure  of  his  own 
insight  in  1874  might  have  led  him  to  temper  his  censures. 

The  discussion  of  the  legal  aspect  of  the  claim  to  a  "pro- 
perty-interest "  in  the  seals  raised  the  most  novel,  and  not  the 
least  interesting  points  in  the  question.  The  Roman  law 
recognised  a  distinction  between  absolutely  wild  animals  and 
those  that  were  half  tamed.  The  former  were  liable  to  capture 
at  all  times,  except  when  they  were  in  someone's  actual  effec- 
tive possession.  The  latter  (including,  for  example,  deer,  bees, 
and  pigeons)  were  regarded  as  still  remaining  in  the  posses- 
sion of  an  owner,  though  they  might  be  beyond  his 
immediate  grasp,  if  only  they  exhibited  the  habit,  and, 
inferentially,  the  intention  of  returning  to  the  hands  which 
cared  for  them.^  The  American  Counsel  claimed  that 
these  rules  supported  their  case.  It  was  contended  that  the 
seals  had  been  brought  under  control  upon  American  soil, 
to  which  they  had  the  constant  animus  revertendi,  and  where 
they  had  become  the  subject  of  an  industry;  that  they  had 
thereby  become  appurtenant  to  the  soil,  and  ought  to  be 
regarded  as  American  property,  and  entitled  to  protection 
wherever  they  might  roam.  But  the  authority  just  quoted 
indicates  two  considerations  which  seem  to  displace  this  con- 
tention. The  foundation  of  the  animus  revertendi  doctrine  is 
the  presumption  that  the  half-tamed  animal  will  return  to  the 
spot  where  it  is  fed  or  sheltered,  and  the  object  of  the  rule  is  to 
protect  the  interest  of  him  who  cares  for  the  animal  against  the 

•  Gaius,  ii.,  Adqiiisitiones  Dominii  Naturahs. — §  67.  Wild  beasts,  birds,  and 
fishes,  as  soon  as  they  are  captured,  become,  l)y  natural  law,  the  property  of 
the  captor,  but  only  continue  such  so  long  as  they  continue  in  his  power  ;  after 
bre.iking  from  his  custody  and  recovering  their  natural  liberty  they  may  become 
the  property  of  the  next  occupant  ;  for  the  ownership  of  the  first  captor  is 
terminated.  Their  natural  liberty  is  deemed  to  be  recovered  when  they  have 
escaped  from  his  sight,  or,  though  they  continue  in  his  sight,  when  they  are 
difficult  to  recapture. 

§  68.  Regarding  those  wild  animals,  however,  which  are  habituated  to  go 
away  and  return  (as  pigeons,  and  bees,  and  deer,  which  habitually  visit  the 
forests  and  return),  the  rule  has  been  handed  down,  that  only  the  cessation  of 
the  instinct  of  returning  is  the  termination  of  ownership,  and  then  the  property 
in  them  is  acquired  by  the  next  occupant  ;  the  instinct  of  returning  is  held  to  be 
lost  when  the  habit  of  returning  is  discontinued. 


THE   BEIIRING   SEA  QUESTION. 


25 


a^Tgression  of  those  who  only  covet  it.  Again,  the  limitation 
of  a  captor's  right,  by  his  actual  possession,  or,  at  least,  by  his 
power  of  easily  and  immediately  regaining  possession,  is 
based  on  this  most  wholesome  application  of  the  de  facto 
principle.  Law  can  take  account  only  of  what  a  man  really 
has.  It  can  only  declare  that  to  be  his  which  he  has  made 
and  continues  to  keep  as  his  own.  It  has  to  do  with  the 
actual,  not  the  hypothetical.  Tried  by  these  tests,  the 
claim  so  eloquently  urged  by  Mr  Carter  must  fall.  During 
their  stay  on  American  territory  the  seals  take  no  sus- 
tenance whatever  from  the  soil ;  and  far  from  being 
tended  or  sheltered,  they  are  compelled,  in  return  for  the 
mere  foothold  they  occupy  on  the  shore,  to  yield  a  tithe  of 
their  kind.  When  they  forsake  the  land  all  pretence  of  any 
man's  having  any  actual  or  constructive  control  over  their 
movements  becomes  out  of  the  question.  They  at  once 
become  the  wildest  and  wariest  of  all  ferce  naturce.  They 
escape  from  sight.  All  but  a  remnant  defy  recapture,  and 
plough  their  pathless  way  to  the  unseen  ocean-haunts  where 
the  winter  half  of  their  double  life  is  spent.  The  American 
Orpheus  must  sing  sweeter  strains  than  these  before  he 
wins  for  all  the  year  his  "  half-regained  Eurydice." 

It  is  to  the  credit  of  Mr  Phelps  that  he  has  made  the 
ablest  effort  to  place  the  American  claims  upon  a  higher 
ground  than  the  Russian  edict  of  1821.  "This  colony  of 
seals,"  he  said,  in  a  contribution  to  periodical  literature, 
"  making  their  home  on  American  soil,  and  unable  to  exist 
without  a  home  upon  some  soil,  belong  to  the  proprietors  of 
the  soil,  and  are  a  part  of  their  property  ;  and  do  not  lose 
this  quality  by  passing  from  one  part  of  the  territory  to 
another,  in  a  regular  and  periodical  migration  necessary  to 
their  life,  even  though,  in  making  it,  they  pass  temporarily 
through  water  that  is  more  than  three  miles  from  land." 
And  if  in  their  passage  they  become  the  victims  of  a 
wanton  destruction,  Mr  Phelps  thinks  the  resources  of 
scientific  jurisprudence  should  provide  a  remedy.  "  Doubt- 
less some  lawyers,"  he  says,  "  would  be  prepared  to  demon- 
strate that  much  as  the  calamity  might  be  deplored,  there 
was  really  no  precedent  to  be  found  in  the  books  for  any 


26 


THE  BEHRING  SEA  QUESTION. 


interference  to  prevent  it,  because  no  such  wron^r  had 
ever  been  attempted  before,  and  to  point  out  that  to 
proceed  without  a  precedent  would  be  to  set  all  juris- 
prudence at  naught.  Precedents  illustrate  principles,  but 
do  not  create  them.  They  arc  only  valuable  so  far  as  they 
display  the  application  of  principles  to  new  cases.  They  do 
not  arise  out  of  rights  but  out  of  attempted  wrongs.  A 
right  cannot  obtain  the  sanction  of  a  precedent  until  it  is 
invaded.  And  an  invasion  of  a  right  is  not  without  redress, 
though  it  may  never  have  been  invaded  in  the  same  way 
before.  There  must  always  be  a  first  case,  but  not  neces- 
sarily therefore  a  remediless  case.  When  the  case  arises  that 
justifies  a  precedent,  the  occasion  for  making  it  should  be 
availed  of  for  the  sake  of  the  law  as  well  as  for  the  sake  of  the 
right."  This  is  wholly  admirable.  This  lofty  conception  of  the 
principles  that  ought  to  guide  international  jurists  is  in  entire 
harmony  with  the  teaching  of  the  late  Professor  Lorimer, 
and  higher  praise  it  can  hardly  hope  to  win.  It  rises  above 
the  beggarly  doctrine  that  only  those  rights  can  be  recog- 
nised and  protected  which  have  been  already  conferred  by 
the  law  as  it  is.  It  points  to  the  true  principle  that  the 
business  o!  the  law  is  not  to  confer  but  to  mark  and  proclaim 
a  right  whicii  a  previous  analysis  of  the  facts  of  the  case  has 
revealed.  I  ,orimer's  thesis  was  that  no  law  can  constitute, 
extend,  or  circumscribe  a  proprietary  relation.  It  can  really 
do  nothing  but  declare  the  true  relationship  of  the  pro- 
prietor towards  the  thing  possessed,  and  towards  his  fellows 
who  may  have  subsidiary  rights  in  that  possession.  If,  then, 
no  positive  international  law  can,  scientifically  speaking, 
confer  the  right  to  capture  the  denizens  of  the  open  sea,  the 
law  which  professes  to  declare  that  right  as  really  existing 
may  quite  well  be  founded  on  an  incomplete  analysis  of  the 
facts.  The  positive  law  of  the  relation  may  be  in  antago- 
nism with  the  natural  law  of  the  relation,  but  that  is  an 
antagonism  which  may  be  eliminated,  and,  as  the  Duke  of 
Argyll  has  well  said,  must  be  eliminated  if  legislation  is 
ever  to  be  attended  with  permanent  success.^  The  first  step 
towards  determining  the  natural  law  which  applies  to  the 

'  Reign  of  Law,  p.  355. 


THE   nEHRING  SEA  QUESTION. 


present  case,  and  so  discovering  the  terms  of  the  positive 
law  which  ought  to  declare  the  rights  of  the  contending 
parties,  is  to  ascertain  precisely  the  habits  of  the  animals 
themselves.  This  is  apparent  from  the  very  statement  of 
the  American  case,  and,  although  the  territorial  claim  of  the 
United  States  was  earnestly  urged  as  sanctioned  by  history 
and  prescription,  and  as  strenuously  denied  by  England, 
who  looked  to  history  and  prescription  for  its  refutation,  yet 
it  was  recognised,  even  in  the  Arbitration  Treaty,  that  the 
mere  settlement  of  the  questions  of  territory  and  jurisdiction 
would  not  suffice  to  dispose  of  the  difficulty.  Each  Govern- 
ment accordingly  agreed  to  appoint  two  Commissioners  to 
investigate,  conjointly  with  the  Commissioners  of  the  other 
Government,  all  the  facts  relating  to  seal  life  in  Behring  Sea, 
and  the  measures  necessary  for  its  proper  protection  and 
preservation.^  With  the  report  of  this  Joint  Commission  to 
guide  them,  the  Arbitrators  were  empowered  to  determine 
what  concurrent  regulations,  outside  the  3-mile  limit,  should 
be  laid  down,  and  over  what  waters  they  should  extend. 
Unfortunately  the  differences  of  opinion  which  arose  between 
the  American  and  the  English  Commissioners,  rendered  it 
impossible  for  them  to  embody  any  but  comparatively  un- 
important conclusions  in  their  joint  report,  and  it  may  con- 
sequently be  doubted  whether  their  inquiries  have  made  the 
natural  history  of  seal-life  much  more  exact  than  it  was 
before.  Besides  the  lack  of  an  accurate  basis  of  fact  to 
build  upon,  there  is  one  other  consideration  almost  sufficient 
to  deter  anyone  from  suggesting  a  rule  of  positive  law  that 
claims  to  declare  the  true  natural  relation  that  ought  to 
govern  the  present  issue.  Natural  law,  we  are  told,  is  dead 
and  buried,  it  is  scouted  as  a  fiction.  In  a  connection  very 
near  to  this  it  is  blamed  for  having  exercised  "  a  disastrous 
power  over  the  international  concerns  of  Canada."  W'o.ether 
it  is  more  thoroughly  discredited  than  the  theories  which 
base  positive  enactment  on  utility  or  philanthropy  is  a  ques- 
tion for  the  schools.  It  is  not  pretended  that  natural  law 
in  a  case  like  the  present  will  indicate  the  exact  limits 
within  which  the  American  rights  ought  to  be  exclusive. 
'  See  Appendix  I., Treaty,  Art.  9. 


28 


TIIF,    1!EIIKING    SEA   ()UKSTI(3N. 


It  will  do  no  more  than  suiijc^cst  that  where  the  power  of 
readily  recjainint;  possession  of  tlic  seals  at  sea  is  found  to 
cease,  there  the  right  to  vindicate  sole  ownership  must  cease 
also.  Pjut  it  is  not  neccssar)-  to  lay  claim  to  the  discovery 
of  the  true  measure  of  l^ritish  and  American  rii^hls  in  this 
matter,  in  order  to  approve  the  terms  of  the  proposal  made 
to  the  Court  by  Sir  Richard  Webster  for  the  regulation  of 
the  seal  fishery  in  the  future.  On  behalf  of  Great  liritain 
he  pnjposed  that  no  seal-hunting  shouki  be  permitted  at 
any  time  within  a  zone  of  .:!0  miles  round  the  I'ribylov 
Islands,  that  a  close  season,  from  the  15th  SeptemlK'r  until 
the  1st  of  Jul)',  should  be  established,  during  which  no 
pelagic  sealing  should  be  i)ermitted  in  Behring  Sea,  and, 
in  order  to  secure  the  due  observance  of  these  regulations, 
that  all  sealing  vessels  should  be  required  to  obtain  a  licence. 
To  say  that  some  such  regulations  .ipj.ear  to  be  those  which 
natural  law  would  prescribe,  may  be  only  to  set  up  a  new 
butt  for  the  shafts  of  ridicule  with  which  writers  of  the 
analytic  and  organic  schools  seem  so  well  supplied.  But 
the  principle  that  there  is  no  right  which  does  not  arise 
from,  and  continue  to  depend  upon,  ])ower,  will  live  and 
as.sert  itself  in  spiie  of  derision,  and  if  rights  depeiul  upon 
powers,  the  extent  of  the  one  is  the  measure  of  the  other. 

Mr  ['helps  has,  in  the  article  already  alluded  to,  ventured 
to  admit,  for  the  purposes  of  argument  only,  that  the  waters 
between  the  mainland  and  the  Pribylov  Islands  outside  the 
3-mile  limit  are  to  be  regarded  as  a  part  of  the  open 
sea,  and  he  pKJceeds  to  show  how  numerous  are  the  restric- 
tions to  w  hich  the  frecdcjin  even  of  the  open  sea  has  been 
subjected.  The  ver\-  case  of  the  3-mile  limit  he  claims 
as  a  concession  to  the  princii)le  that  where  ((bvious 
necessities  of  justice  require  if,  the  doctrine  of  freedom  is 
set  aside.  lie  fnuls  fuiUier  iiist.mces  in  the  law  of  bloci<ade 
and  the  right  of  searching  anil  stopping  sla\e-traders.  Ho 
infers  that  the  principle  involved  in  these  cases  should  be 
applied  to  settle  the  present  difficulty  in  a  sense  favourable 
to  the  United  States.  Correct  as  his  cor.c'Msion  may  be, 
that  the  freedom  of  the  seas  can  never  aulhoiise  injur)-  to 
the  property  or  just  rights  of  others,  a  hich  are  as  sacred  at 


Tin:  nr.iiRixr;  sf.a  oit.stiox. 


29 


sea  as  on  shrire,  it  is  certain  tliat  tlie  analogies  he  adduces 
liave  no    apijlication    liere.     The  riL^ht  of  a    belliLjercnt  to 
stop  the  commerce  of  lu's  enemy's  ports  is  a  riqht  which 
only  war  confers.     A   "  ])acific  blockade"  there  never  was 
and  never  will  be.    .\11  the  pacific  l)lockades  of  the  century, — 
that  which  we,  in  concert  with  h'rance  and  Russia,  instituted 
in  the  IJay  of  .\avarino  in  \^2y,  when  v.-e  blew  the  Turkish 
fleet  t(j   pieces,  while    oui    ambassador    remamed    at    ('011- 
stantinoplc  professini;-  amity  with    the   .Sultan,  that  which 
we,  aided  by   I'rance,  set  U[)  over  the  Ar^^entine   i'orts  in 
iS45,and  thatwliich  I''rance  latclv  enforced  aj^^ainst  Siam, — 
were  truly  war  measures.     They  were  all  enforced  a;^ainst 
weak  States.     The  first  attempt  to  a])pl\-  a  pacific  bkjckadc 
to    a    stronr,r    power    will    assuredl}'    demonstrate    the    real 
character    of   the    o])erati(;n.      As    for    the    other    example 
u])on    which    Mr    rhel]  ;    relies,   the    ri;dit   of   visitinrr   and 
searciiiiii^r  slave-traders,  it  can  be  refuted  upon  the  authority 
ol  a  judi^e  whose  decisions  h.ive  become  an  inte,L,Mal   part 
of  the  law  of  nations.      'l"he  case  of  Lc   i.ouis'  in    1S17  was 
that  of  a  l^'rei^i^h   ship  captureil  b\   an    ICnglish  cruiser  on 
suspicion    of   being    enc^aged    in    the    slave-trade,    antl    for 
rcsistinL,^   a  search.     Sir   William    Scott    (afterwards    Lord 
Stowell)  held  that  the  visit  and  search  made  by  the  cruiser 
were  unlawful   bec>ause  no   l)riti>h  .Act  of  Tarliamcnt  could 
authorise  such  a  proccidini;  aj_;ainst  foreii^niers.      lie   laid   it 
ilown    that  no  nation  could  exercise  a    ri^lit   of   visit  and 
search  upon  the  luL^h  seas  save  only  on  a  belligerent  claim. 
Xor  could  he  hold  the  visit  made  in   tiine  of  peace  justified 
on  the  cj^i'ound   that  the  captm-cil  vessel   bein;j;  a  slaver  was 
thereby  a  pirate,  lor  the  slave  traffic  was  not  piracy  or  c\-en 
a   crime  1)_\-   the   unixcrsal    law   of  nations.     A    nation,   lie 
declared,  had  a  ri_L;ht  to  enforce  its  own  municipal  rules  anel 
navic;,ation  laws  so  far  as  such  enforcement  did  not  interfere 
M'itli  the  rip[hts  of  others,  but  it  had  no  rij^ht  under  co\er  of 
its  munici[),d  rei^ulations  t")  \isit  aiut  search  ves.sels  of  other 
natii/n.dilies  on   the  hi;_;ii   seas.     The  case  is  ai)soluteI\'  in 
j>'»im  here,     it   is  true  that  the  sia\'e-trade  i.-^  now  ahno>t  in 


2  l)niN.  A'lm.  \<v\\  jio   .111.1  I'iii  (_'oM«.'U\  lA'ailiii,.  Ca-es  P-  '^.^      1'.' 


iSy:. 


^o 


Tin-:  isEURTXc;  ska  ()ri;sTi()\. 


the  category  of  piracy,  and  it  is  also  true  that  the  Alaska 
Company's  officials  have  not  hesitated  to  call  the  seal- 
fishers  pirates.  Hut  to  rise  from  these  positions  to  the 
conclusion  that  the  Great  Republic  can  In'  Proclamaticjn 
stop  innocent  commercial  enterprise  in  a  c^'reat  sea  is  not 
an  effort  of  reason  but  a  flight  of  imagination.  Air  Phelps 
nevertheless  undoubted!)-  succeeded  in  establishing  the 
main  thesis  he  set  liimself  to  ])rove ;  that  the  sea  has  never 
been  free  for  any  ]-)urpose  whatever  inimic-l  U-  the  just 
rights  of  mankind,  lie  might  even  ha\'e  gon  '},)•■.•■  ,md 
ha\'e  shown  that  the  true  history  of  the  doctrine  i.  'hat  the 
sea  was  never  regardctl  as  free  until  it  was  recogm's-ci  that 
claims  to  hold  the  sea  in  fee  far  exceeded  the  powers  that 
professed  to  xinrlicate  them.  It  was  c)nl\-  when  the  nawd 
supremacy  of  one  or  two  great  maritime  nations  was 
challenged  that  the  doctrine  of  W(?/-r  lilhritni  began  to 
will  favour.  It  is  not  that  principle  which  stands  in  the 
way  of  .Mr  Phelps.  Let  him  show  the  reality  of  his 
riLdit — the  validity  of  that  strange  claim  to  ownersliii) 
in  the  seal-- — and  no  "  [)irates '"  will  be  allowed  to  i)re- 
tend  that  the  freedom  of  the  sea  permits  thein  to  destroy 
it. 

There  remains  the  historical  argument  that  this  righi 
property  or  propertj'-interest  was  elerived  b\'  the  Uni.  .\ 
States  fiom  Russia,  and  has  been  \.ilidated  b\'  long  and 
continuous  e.xercisc.  I'he  statement  of  the  American 
position  which  has  been  alread)- (pioted  from  Air  IMaine's 
despiitch  of  14th  April  iSyi  would  seem  to  i)lace  this  right 
in  the  ver_\-  forefront  of  the  dispute.  l>ut  once  again  we 
re<iu'red  to  be  instructed,  and  the  lessoii  v  .-.  read  to  us  this 
time  before  the  Arbitration  Court  itself  \  '  en  iliscussion 
arose  before  the  tribunal  as  to  whether  a  supplemei  l.ry 
Re]5ort  submitted  b\'  the  Pritish  Commissioners  shoii;':')  '-e 
ailmilled.  Mr  Carter,  the  coadjutor  ot  Mr  Phelps,  niain- 
tainetl  that  all  the  evidence  on  seal  life  which  Britain 
intended  to  sibmit  ought  to  h.ivc  '  ■■'  ii  included  in  her 
Commissioners'  Report,  <as  tiiea  alre;io;.  'oiigeil,  and  ought 
not  afterwards  to  be  receiveti.  Sir  (  ii,u-les  Russell  relied 
u[)on  the  exi)ress  terms  of  the  seventh  article  of  the  Treat}- 


THE    lUCIlRIXO    SKA   (JUKSTION. 


31 


which  stipulate  that  the  I'icport  shall  be  accompanied  "  with 
such  other  evidence  as  either  Govcrnmenc  may  submit," 
and  construed  that  as  conferrini:^^  a  ri^ht  to  lead  e\idencc 
re.r,^'irdino^  ref^ularisation,  even  after  the  case  and  counter- 
case  had  been  closed  under  Article  9.  Ii:  the  end,  the 
Court  decided  that  the  Report  should  not  be  receixed  at 
that  sta.t,fe,  but  that  Counsel  mii^dit  adopt  the  arL^umients 
contained  in  it  as  part  of  their  oral  argument.  The  point 
is  of  interest,  as  showing  the  American  Counsel  strongly- 
contending  that  from  the  first  the  dispute  had  been  one 
abor.L  regulation,  and  that  the  (lucstion  of  right  was  a 
sccondar\'  matter  imported  into  the  diplomatic  corre- 
spondence at  a  later  stage.  This  will  be  readiU-  recognised 
as  a  develoi)ment  in  the  forensic  discussion  of  the  view 
which  iMr  Phe!i)s  so  astutely  presented  to  our  Government 
in  icSSS.  to  the  effect  that  the  institution  of  a  close  time 
would  solve  the  wiiole  dispute.  ISut  the  history  of  the  case 
from  [886  onwards  stamps  this  con'.ention  as  an  ingenious 
attempt  to  shift  the  original  controversy  to  a  different  and 
safer  ground.  There  was  in  1886  no  (lucstion  of  securing 
the  concurrence  of  England  and  other  powers  in  establishing 
imernational  regulations  for  the  seal-fishery.  The  onl)- 
matter  then  agitated  was  the  Americans'  right  to  seize  the 
vessels  which  they  deemed  aggressors  and  convict  the 
crew.s.  Despatch  after  despatch  was  launched  against  the 
Foreign  Offioe  proclaiming  the  dominant  right  of  the 
United  States  to  repress  '.he  incursions  of  all  foreign  fisher- 
men, i'rimary  o.-  secoiu'ary,  however,  this  "pi-opcrt_\--interest'' 
was  strongly  insisii_^l  on  as  a  valuable  chattel  which  the 
United  Sta.tes  had  acquired  by  a  good  title  from  Russia, 
ant!  in  the  possession  of  which  neither  they  nor  their  pre- 
decessors had  ever  been  disturbed.  The  American  doctrine 
of  prescription  and  the  facts  which  are  held  to  prove  our 
aL<|uiescence  tleser\e  to  be  examined. 

From  the  year  1 741,  when  that  bold  Dane,  \'itus  Iiehring. 
sailing  under  the  tlag  of  Peter  the  Great  from  the  Siberian 
side,  touched  the  coast  of  the  Amcricin  continent,  the 
Russian  dominion  over  that  part  of  the  N'orth  Pacific 
Ocean  known  as  the  iaea  of  Kamschatka  was  paramount 


32 


THE   BEIIRING   SEA   QUESTION. 


for  sixty  years.     That  dominion  was  expressly  asserted  in 
the  Ukase  of  the  Emperor  Paul  issued  in  1799,  by  which 
the  absolute  control  of  the  whole  region  was  vested  in  the 
Russian- American  Company.     In  1821  the  Emperor  Alex- 
ander,   finding   that    the    Russian    trade   on    the    Aleutian 
Islands  and  in  Russian-America  was  greatly  hindered  by 
•     t  and  illicit  traffic,  issued  an  edict  excluding  all  but 
:       .ian  subjects  from  trading,  whaling,  or  fishing  in  those 
parts,  and  prohibiting  all  but  Russian  vessels  from  landing 
on  the  coasts  and  islands,  and  even  from  approaching  them 
within  less  than  100  Italian  miles.     It  is  not  surprising  that 
this  preposterous  announcement  evoked  both  iMiglish  and 
American  protests.     Mr  John  Quincy  Adams  said  he  could 
admit  no  part  of  the  Russian  claims.     With  regard  to  the 
pretension  of  Russia  to  treat  these  waters  as  a  close  sea,  he 
said  :  "  It  may  suffice  to  say  that  the  distance  from  shore  to 
shore  in  this  sea,  in  latitude  51'  north,  is  not  less  than  90° 
of  longitude,  or  4000  miles."     The  Duke  of  Wellington,  on 
behalf  of  England,  intimated  that  we  could  not  admit  the 
right  of  any  power  possessing  the  sovereignty  of  a  country 
to  exclude  the  vessels  of  others  from  the  seas  on  its  coasts 
to  the  distance  of  100  miles,  and  that  we  objected  to  the 
arrangements    contained    in    the    ukase    conferring    upon 
private  merchant  ships  the  right  to  search  in  time  of  peace, 
as  being  quite  contrary  to  the  laws  and  usages  of  nations, 
and  to  the  practice  of  modern  times.     The  Duke  stated  the 
plain  sense  of  the  matter  in  a  despatch  to  Count  Lievcn. 
"  We  contend  that  no  Power  whatever  can  exclude  another 
from  the  use  of  the  open  sea  :    a  Power  can  exclude  itself 
from  the  navigation  of  a  certain  coast,  sea,  &c.,  by  its  own 
act  or  engagement,  but  it  cannot  by  right  be  excluded  by 
another."^      This    fairly   hits    the    vitious    premiss    which 
underlies  the  American  claim  in  the  present  case.      It  is 
true  that  Mr  Blaine  cited  against  Ikitain  certain  precedents 
from  her  own  practice.     He  pointed  to  the  English  Act  of 


^  So  Calvo  ; — "Deux  ou  plusicurs  nations  sont  libres  de  modifier  conven- 
tionnellcment  ce  principe  ;  dc  le  restreindrc  ou  de  IV-tcndre  ;  mais  cc  sont  la  des 
dispositions  tpii  lus  licnt  entrc  cllcs  dan  leurs  relations  reciprocpies  sans  qu'elles 
puissent  k-  ap[)li(iuer  et  bien  moins  encore  les  iniposer  a  d'autres  Etats." 


THE   DEIIRING   SEA   QUESTION. 


33 


Parliament  of  1816,  forbidding  vessels  to  hover  within  four- 
and-twenty  miles  of  St  Helena,  and  the  very  recent  Act 
closing  the  whole  Moray  Firth  to  trawlers.  The  answer  to 
this  unfortunate  attempt  to  found  an  analogy  upon  the  St 
Helena  Act  is  obvious.  That  Act  was  admittedly  an 
extraordinary  assumption  of  jurisdiction,  and  its  recognition 
was  only  secured  by  special  treaty  with  the  Great  Powers — 
a  treaty  to  which  the  United  States  themselves  formally 
acceded.  As  for  the  Act  which  stops  free  fishing  in  the 
Moray  Firtl  ,  *'.  is  plainly  based  upon  the  well  recognised 
principle  that  c3  the  Firth  is  included  within  two  head- 
lands, both  of  which  belong  to  the  same  State,  the  mode  of 
fishing  to  be  practised  in  it  may  be  prescribed  by  that 
State's  municipal  enactments.  The  Act  provides  that 
'•  trawling  shall  not  be  used  within  a  line  drawn  from 
Duncansby  Head,  Caithness,  to  Rattray  Point,  Aberdeen- 
shire." If  it  be  objected,  and  it  may  undoubtedly  be  fairly 
objected,  that  it  is  an  excessive  extension  of  the  headland 
doctrine  to  legislate  for  2700  square  miles  of  sea  which 
hardly  present  the  characteristics  of  an  enclosed  bay,  it 
may  be  granted  that  the  Act  is  ineffectual  against  foreigners 
beyond  tiie  3-miIc  limit.  The  only  check  which  could 
legitimately  be  placed  upon  a  Norwegian  trawler  violating 
the  Act  would  be  to  refuse  to  allow  her  catch  to  be  landed 
in  this  country.  But  if  the  case  be  imagined  of  our  founding 
at  some  date  in  the  distant  future  upon  this  Act,  and  upon 
other  nations'  acquiescence  in  it  as  evidenced  by  their  for- 
bearance from  all  challenge  of  the  Act  and  from  competitive 
enterprise  in  the  forbidden  area,  how  would  our  pretension 
be  received  ?  Is  there  anyone  simple  enough  to  suppose 
that  if,  forty  years  hence,  the  Moray  Firth  fishing  should  by 
some  revolution  in  !ish-life  become  so  valuable  as  to  tempt 
American  enterprise,  the  Bureau  at  Washington  would  con- 
cede that  prescription  of  the  seas  had  run  against  them  ? 
We  may  safely  credit  their  diplomatists  with  penetration 
and  erudition  sufficient  to  scout  the  unreasonable  doctrine, 
and  overwhelm  us  with  legal  authority  for  its  repudiation. 
They  would  tell  us,  as  the  Duke  of  Wellingtoii  told  the 
Russians  in  182 1,  that  a  nation  can  by  its  own  engagement 


34 


THE  BEIIRING  SEA  QUESTION. 


exclude  itself  even  from  an  open  sea,  but  cannot  be  ex- 
cluded by  another. 

These  emphatic  protests  efifected  their  purpose,  and  after 
some  negotiation  the  question  was  settled  by  two  treaties,  one 
between  Russia  and  the  United  States  (1824),  the  otner  be- 
tween Russia  and  Great  Britain  (1825).     The  first  article  of 
the  former  treaty  runs : — "  It  is  agreed  that,  in  any  part  of 
the  great  ocean  commonly  called  the  Pacific  Ocean  or  South 
Sea,  the  respective  citizens  or  subjects  of  the  High  Con- 
tracting  Powers  shall  be  neither  disturbed  nor  restrained 
either  in  navigation   or  in   fishing."      The  English   treaty 
contains  a  similar  clause.     Now,  if  ordinary  language  is  to 
have  its  ordinary  meaning  in  a  State  paper,  surely  this  was 
a  distinct   abandonment  of   the   Russian   position.      The 
American  contention,  however,  is  that  it  was  nothing  of 
the  sort.    The  Pacific  Ocean  or  South  Sea,  says  the  American 
Secretary,  meant    anything  but  Behring's  Sea:    Behring's 
Sea  is  never  mentioned  :  if  it  had  been  included  it  would 
have  been  specifically  named:    "It  is   impossible  that,  in 
the  Anglo-Russian  treaty.  Count  Nesselrode,  Mr   Stratford 
Canning,  and   M.  Poletica,  could  have  taken  sixteen  lines 
to  recite  the  titles  and  honours  they  had  received  from  their 
respective  sovereigns,  and  not  even  suggest  the  insertion  of 
one  line,  or  even   word,  to  secure  so  valuable  a  grant  to 
England  as  the  full  freedom  of  the  Behring's  Sea."     The 
treaties,  he  maintains,  practically  withdrew  the  waters  of 
the  north-west  coast  on  the  Pacific  Ocean  from  the  opera- 
tion of  the  ukase  ;  the  inference,  therefore,  is  that  it  remained 
operative  over  Behring's  Sea.  Again,  the  American  Secretary 
triumphantly  asks,  why  was  it  that,  for  forty  years  after  the 
treaties  of  1824  and  1825  were  concluded,  neither  American 
nor  Elnglish  ships  entered  Behring's  Sea  to  compete  with 
the  Russian- American  Company  ?    Docs  not  their  abstention 
raise  the  strongest  presumption  of  their  lack  of  right,  and 
of  their  recognised  disability? 

Perhaps  the  most  astounding  assumption  in  this  chain  of 
assertions  is  that  which  presupposes  that  England  required 
to  secure  a  grant  to  enable  her  citizens  to  sail  and  fish  in 
Behring's  Sea — required  a  concession  from  a  naval  power 


THE  BEIIRING  SEA  QUESTION. 


33 


far  weaker  than  herself  to  entitle  her  sailors  to  follow  the 
free-swimming  fish,  whales,  and  seals  over  a  stretch  of  sea 
1 100  miles  broad.  But,  in  point  of  fact,  we  waited  for  no 
grant.  It  is  an  incontrovertible  historical  fact  that  from  the 
time  of  these  treaties  onwards,  foreign  vessels  fishing  in 
Behring's  Sea  were  never  interfered  with.  It  has  been 
stated  on  the  best  authority »  that  when  the  Pacific  whale 
fishery  was  in  its  most  flourishing  state,  whole  fleets  of 
English,  American,  and  foreign  whalers  frequented  Behring's 
Sea  without  let  or  hindrance.-  Not  only  so,  but  when  in 
1842  the  Russian- American  Company  urged  Russia  to  stop 
the  operations  of  American  whalers  in  that  sea,  she  declined, 
on  the  express  ground  that  the  treaty  of  1824  gave  to 
American  citizens  the  right  of  fishing  "  over  the  whole  extent 
of  the  Pacific  Ocean." 

But  what  strength  is  there  in  the  contention  that  the  term 
"  Pacific  Ocean"  used  in  the  treaties  of  1824  and  1825  ex- 
cludes liehring's  Sea?  The  American  Secretary  was  at 
great  pains  to  collate  some  hundred  maps  and  charts  to 
establish  that  Behring's  Sea  was  known  at  the  time  the 
treaties  were  concluded  by  some  specific  name  distinguish- 
ing it  from  the  Pacific— be  it  Behring's  Sea,  the  Sea  of 
Kamschatka,  Bassin  du  Xord,  Mer  Dormant,  or  whatever 
else.  "  Is  it  possible,  then,"  he  asked,  "  that  with  this 
cloud  of  witnesses  before  the  eyes  of  Mr  Adams  and 
Mr  George  Canning,  attesting  the  existence  of  the  Sea  of 
Kamschatka,  they  would  simply,  include  it  in  the  phrase 

1  Hancrofl's  Ilis/orv  cf  the  Pacific  State;,  vol.  xxviii. 

2  Mr  Charles  H.  Ewarl  of  >fi]ll.ush,  Dallx^attie,  writes  of  his  own  exi.eriences 
as  one  of  the  crew  of  an  American  whaler  .^ailing  from  New  Bedford  :— "  We 
caught  whales  in  the  IJehring  .Sea  during  iS57-5*^-59-  Our  common  ractice 
was  to  leave  the  Hawaiian  Islands  in  the  month  of  March,  and  go  north  to  the 
Behring  Sea,  thence  into  the  Gulf  of  Anadir,  and  afterwards  moving  down  the 
east  coast  of  Kamschatka,  we  went  through  what  was  called  the  50'  passage  in 
the  Kurile  islands  into  the  Okhotsk  Sea.  We  hunte.l  and  caught  whales  in  all 
these  seas  without  let  or  hindrance.  If  the  Kus.Man^  had  been  inclined  to  place 
any  restrictions  on  whale  fishing  at  all,  they  would  surely  have  done  it  in  the 
Okhotsk,  which  is  virtually  inkind  sea.  I  have  been  ashore  in  every  town  and 
hamlet  in  the  Okhotsk,  and,  even  where  there  were  military  establishments, 
instead  of  any  restrictions  being  place<l  on  our  coming  and  going,  we  were  re- 
ceived with  the  utmost  cordiality,  and  I  remained  in  the  I'acinc  untd  1870,  and 
I  never  at  any  time  heard  of  any  propoi.-il  to  interfere  with  whale  ships." 


36 


THE  BEHRING  SEA  QUESTION. 


'Pacific  Ocean'?  Is  it  possible  that  Mr  Canning  and 
Mr  Adams  would  believe  that  they  were  acquiring  for 
the  United  States  and  Great  Britain  the  enormous  rights 
inherent  in  the  Sea  of  Kamschatka  without  the  slightest 
reference  to  that  sea,  or  without  any  description  of  its  metes 
and  bounds,  when  neither  of  them  would  have  paid  for  a 
village  house-lot,  unless  the  deed  for  it  should  recite  every 
fact  and  feature  necessary  for  the  identification  of  the  lot 
against  any  other  piece  of  ground  on  the  surface  of  the 
globe  ?  "  Against  this  "  cloud  of  witnesses  "  Lord  Salisbury 
set  a  list  of  ordinary  works  of  reference  in  which  the  Pacific 
Ocean  is  used  as  including  that  sea.  His  general  answer 
was  an  analogical  argument  establishing  the  absolute  pro- 
priety of  the  designation  used  in  the  treaties.  He  cited  the 
Gulf  of  Lyons  and  the  Bay  of  Biscay,  which,  though  enjoy- 
ing separate  particular  names,  are  surely  to  be  held  as  parts 
of  the  Mediterranean  and  of  the  Atlantic  respectively.  But 
there  is  direct  contemporaneous  evidence  that  "  Pacific 
Ocean  "  was  the  term  officially  recognised  as  covering  what 
is  now  known  as  Behring's  Sea.  The  Russian  Minister, 
writing  to  Mr  Adams  in  1822,  declares  that  "the  Russian 
possessions  in  the  Pacific  Ocean  extend  on  the  north-west 
coast  of  America  from  Behring's  Straits  to  the  51st  degree 
of  north  latitude."  Again,  in  a  paper  accompanying  Mr 
Adams's,  instructions  sent  in  1823  to  Mr  Middleton  (who 
was  at  that  time  American  Minister  at  St  I'etersburg),  this 
passage  occurs : — "  The  right  of  navigation  and  fishing  in 
the  Pacific  Ocean,  even  on  the  Asiatic  coast  north  of  latitude 
45^  can  as  little  be  interdicted  to  the  United  States  as  that 
of  traffic  with  the  natives  of  North  America."  This  language, 
be  it  remembered,  is  used  with  express  reference  to  Russia's 
claim  to  exclusive  jurisdiction  over  the  sea  from  Behring's 
Strait  down  to  45°  50'  on  the  American  coast. 

But  the  American  diplomatists  may  be  left  to  make  the 
most  of  their  giddy  footing  on  this  narrow  ledge  of  reasoning 
from  the  content  of  a  term.  Let  any  man  come  down  to 
broader  ground,  and  read  the  treaty  of  1824  m  the  light  of 
the  ukase  which  preceded  it,  and  then  s.-  ■  whether  he  can 
come  to  any  other  decision  than  thn'   so  explicitly  enun- 


#«;< 


THE  BEHRING  SEA  QUESTION. 


37 


^ 


#*' 


ciated  by  Calvo,  who  declares  that  that  convention  secured 
freedom  of  navigation  and  fishery,  "  dans  toute  Pctendue  de 
I'Ocean  Padjique."     The  Russian  edict,  upon  the  narrative 
that  the  proper  regulation  of  traffic  required  the  establish- 
ment of  boundaries  for  navigation  on  the  north-west  coast 
of  America,  the  coast  of  Siberia,  and  among  the  Aleutian 
Islands,  prohibited  all  commerce  and  navigation  on  or  m 
"all  islands,  ports  and  gulfs,  including  the  whole  of  the 
north-west   coast  of    America,   beginning    from   Behring's 
Straits  to  the  51st  degree  of  north  latitude."     That  was  the 
gigantic  claim  put  forward  by  Russia  ;  that  was  the  preten- 
sion which  the  United  States  and  Great  Britain  set  them- 
selves to  overthrow.     If  the  treaties  which  professed  to  settle 
that  question  in  a  sense  favourable  to  the  Americans  and  to 
us  really  have  no  application  north  of  the  Aleutian  chain, 
how  were   we  deluded?     Never    did   Russian   diplomacy 
achieve  so  blindly  fortunate  a  victory.     And  yet,  if  it  was 
Count   Nesselrode's   conscious   but   tacit   intention  to  pre- 
serve all   his   sovereign's   high    prerogatives   in    Behring's 
Sea,  never  did  Russian  plenipotentiary  put  his  hand  to  a 
convention  so  unfortunate  in  its  phraseology.     Look  at  the 
third  article  of  the  deed  :     "  There  shall  not  be  formed  by 
the  citizens  of  the  United  States  any  establishment  upon 
the  north-west  coast  of  America,  nor  in  any  of  the  islands 
adjacent,  to  the  north  of  54°  40'  of  north  latitude,  and  in  the 
same  manner  there  shall  be  none  formed  by  Russian  sub- 
jects south  of  the  same  parallel."     This  provision  regarding 
the  territory  of  the  United  States  may  have  been  only  a 
particular  enunciation  of  the  famous  doctrine  promulgated 
only  a  few  months  before  by  President  Monroe,  interdicting 
all  future  European  colonisation  on  the  American  continent. 
But  why  should  Russia  have  sought  or  accepted  such  a 
stipulation  for  her  domain  ?     By  the  terms  of  the  hypothesis 
there  was  left  standing  in  full  validity  her  haughty  inhibition 
barring  even  navigation  in  the  sea  north  of  the  Aleutian 
peninsula.     Yet  here  she   exacts   merely  a  prohibition  of 
establishments  on  shore,  knowing,  as  well  she  knew,  that 
upon  the  most  approved  canons  of  construction  this  clause 
would  in  the  future  be  construed  against  her ;  that  it  would 


38 


THE  BEIIRING  SEA  QUESTION. 


be  read  as  no  mere  supererogatory  provision,  but  as  really 
derogating  from  her  loftier  pretension  to  exclude  all  com- 
merce from  Hehring's  Sea. 

And  how  stands  this  matter  in  the  treaty  of  1867  ?     Let 
us  occupy  for  a  momr^nt  Mr  Blaine's  standpoint.     Here  was 
Mr  Seward  framing  a  deed  of  cession  that  was  to  convey 
infinitely  more  than  the  treaty  of  1824  carried.     He  had 
before  him  that  treaty  fixing  the  right  of  American  sailors 
to  trade  over  the  North  Pacific  Ocean — a  treaty  which  upon 
this  assumption  stopped  short  at  the  Aleutian  chain,  and 
left  Behring's  Sea  a  forbidden  area.     Jealous  as  he  must 
have  been  "  to  recite  every  fact  and  feature  "  of  the  territory, 
and  precise  as  he  ought  to  have  been  in  his  specification  of  its 
"  metes  and  bounds,"  he  actually  defines  a  part  of  Behring's 
Sea   by   the   perilous   misnomer    "  North   Pacific   Ocean." 
There  is  no  room  for  doubt  on  the  point.     The  western 
limit  of  the  ceded  territory,  according  to  the  second  article 
of  the  treaty,  runs  "  in  a  south-westerly  direction,  so  as  to 
pass  midway  between  the  island  of  Attou  and  the  Copper 
Island  of  the  Kormandorski  couplet  or  group  in  the  North 
Pacific  Ocean."     Now,  for  the  first-named  island  it  might  be 
said  it  was  on  the  boundary  between  the  Pacific  Ocean 
proper   and    Behring's   Sea,  and    might   be  described   as 
lying  in  either.     But  no  such  evasion  is  possible  about  the 
other.     Copper   Island  lies    icxD  miles   north  of  Attou,   as 
much  and  as  unequivocally  in  Behring's  Sea  as  ever  were 
the  Pribylov  Islands  themselves,  and  yet  here  we  find  it 
stamped  with  the  American  State-Office  mark  as  belonging 
to  the  North  Pacific  Ocean.     Nor  is  the  case  better  if  we 
regard  the  actual  dispositive  clauses  of  the  conveyance  of 
1867.     By  the  first  article,  Russia  cedes  "all  the  territory 
and  dominion  now  possessed  by  his  said  Majesty  on  the  con- 
tinent of  America  and  ifi  the  adjacent  islands  ;  and  the  sixth 
article  explains  that  "  the  cession  hereby  made  conveys  all 
the  rights,  franchises,  and  privileges  now  belonging  to  Russia 
in  the  said  territory  or  dominion,  and  appurtenances  thereto." 
There  is  not  one  word  of  sea,  or  dominion  over  any  sea.     In 
the  face  of  the  protests  of  1821,  denying  and  successfully 
opposing  the  Russian  claim  to  exclude  vessels  from  a  .sea- 


THE  BEIIRING   SEA  QUESTION. 


39 


belt  of  lOO  miles,  we  arc  asked  to  believe  that  the 
United  States  in  1867  paid  valuable  consideration  for  the 
right  to  shut  out  fishing  vessels  from  countless  leagues  of 
the  open  ocean.  In  the  face  of  the  late  insistence  upon  the 
paramount  duty  of  state  draftsmen  to  recite  every  fact  and 
feature  of  the  territory  they  describe,  we  are  asked  to  believe 
that  the  United  States  were  content  to  have  this  costly 
acquisition  mentioned  as  a  right  in  the  territory  or  an 
appurtenance  thereto  without  any  more  elaborate  specifi- 
cation. 

It  has  been  suggested  that,  though  no  sea  was  expressly 
conveyed  by  the  Treaty  of  1867,  the  limits  of  the  ceded 
region   as   there  laid  down  are  sufficient   to   include  the 
whole  of  Bchring  Sea,  which  should  therefore  be  held  as 
conveyed  by  implication.     It  will  be  observed  that  in  the 
Treaty  the  eastern  and  western  boundaries  are  stated  with 
great  precision,  but  that  neither  a  northern  nor  a  southern 
boundary  is   given.     The  eastern   boundary  in  its  course 
northward    becomes   coincident  with   the   141st  degree  of 
west  longitude,  and  the  western  boundary  from  a  point  in 
Bchring    Straits    northwards    is    identical    with    another 
meridian.     As  these  meridians  meet  only  at  the  Pole,  there 
is  no  reason  why  the  territory  they  are  said  to  delimit 
should   stop   short   at    Behring    Straits.      If    the    United 
States'   title    is    to    be    measured   by   these   bounds,   the 
President's  Proclamation  can  exclude  rival  enterprise  from 
a   large   part  of  the  Arctic  Ocean  a      v.-U   as   set   up   a 
monopoly  in  the  eastern  part  of  Behring  Sea.     The  want 
of  a  specific  southern  boundary  has,  for  the  purposes  of  the 
United  States'  argument,  been  supplied  by  the  hypothesis 
that  the  Aleutian  Archipelago  constitutes  a  "  firm  pelagic 
boundary"  in  that  direction.     That   this  theory  has  been 
thought  worth  discussing   is   probably  due  mainly  to  the 
fascination  of  the  phrase.     In  order  to  dismiss  it,  it  seems 
enough  to  state  that  a  boundary  line  drawn  from  island  to 
island  of  the  archipelago  would  cross  open  spaces  of  sea, 
varying  from  20  to  80  miles  in  width,  and,  unless  produced 
beyond  the  land's  end  of  the  last  of  the  islands,  would  fall 
far  short  of  the  western  Treaty  limit.     Such  a  boundary 


40 


THE   BEHRING   SEA  OUESTION. 


may  be  "  pelagic,"  but  neither  in  respect  of  its  constitution 
nor  of  its  terminus  can  it  be  said  to  be  "  firm." 

The  conclusion  which  this  analysis  seems  to  warrant  is 
that  the  American  case,  so  far  as  it  is  based  on  the  title 
given  by  Russia,  is  not  borne  out  by  a  fair  interpretation  of 
the  deed  of  cession ;  that,  so  far  as  it  claims  to  be  supported 
by  exclusive  possession  and  our  acquiescence  therein,  it  is 
not  founded  on  fact ;  and,  that  so  far  as  it  rests  on  a  pre- 
tended property-interest  in  the  seals  themselves,  it  is 
sanctioned  neither  by  fact  nor  by  law.  Hut  after  this  is 
said,  it  remains  to  acknowledge  the  irresistible  force  of 
Mr  Phelps's  demand  that  the  law  by  international  nven- 
tion,  or  whatever  other  means  is  invoked  to  su  the 

want  of  an  international  legislature,  shall  forbid  the  »vanton 
and  wasteful  destruction  of  a  rare  and  valuable  animal. 
Such  a  prohibition  ought  to  be  enforced  not  to  protect 
the  phantom  of  State-ownership  in  a  wild  animal,  but  to 
vindicate  the  right  of  the  animals  themselves  to  live  and 
multiply  after  their  kind. 

After  reviewing  the  arguments  that  have  been  presented 
for  the  United  States,  one  is  tempted  to  ask  whether  this  is 
the  same  nation  which,  through  one  hundred  years  of  strife, 
has  employed  every  argument  that  diplomatic  ingenuity 
could  suggest,  every  method  which  prohibitory  tariffs  could 
devise,  to  compel  England  to  throw  open  the  inshore 
fisheries  of  Canada  and  Newfoundland  ;  which  has  main- 
tained that  "the  deep-sea  fisherman,  pursuing  the  free- 
swimming  fish  of  the  ocean  with  his  net  or  his  leaded  line, 
not  touching  shores  or  troubling  the  bottom  of  the  sea,  is 
no  trespasser  though  he  approach  within  three  miles  of  a 
coast  by  any  established  recognised  law  of  nations ; "  which 
contended  before  the  Halifax  Commission,  in  1877,  that 
"  the  territorial  waters  of  the  British  North  American 
provinces  on  the  Atlantic  coast  comprise  only  that  portion 
of  the  sea  lying  within  a  marine  league  of  the  coast,  and 
also  the  interior  of  such  bays  and  inlets  as  are  less  than  six 
miles  wide  between  their  headlands ;  while  all  larger  bodies 
of  water  are  parts  of  the  free  and  open  ocean."  Do  the 
fishermen  who  go  down  from  Marblehead  and  Gloucester 


(4 


^N 


THE  HEIIKING  SEA  QUESTION.  4^ 

and  carry  back  rich  cargoes  from  the  Canadian  bays  sail 
under  the  same  (lag  that  flies  over  the  cruisers  which  seize 
Canadian  vessels  seventy  miles  from  the  shores  of  Alaska? 


^r 


The  Award  of  the  Arbitrators  has  now  been  delivered. 
To  the  five  specific  questions^  addressed  to  them,  the 
Arbitrators  have  given  the  following  answers  : — 

1.  That  by  the  Ukase  of  1 821,  Russia  claimed  jurisdiction 
in  the  sea,  now  known  as  Behring  Sea,  to  the  extent  of  100 
Italian  miles  from  the  coasts  and  islands  belonging  to  her, 
but  in  the  course  of  the  negotiations  which  led  to  the 
treaties  of  1824  with  the  United  States,  and  of  1825  with 
Great  Britain,  Russia  admitted  that  her  jurisdiction  in  the 
said  sea  should  be  restricted  to  the  reach  of  cannon  shot 
from  the  shore,  and  it  appears  that,  from  that  time  up  to 
the  time  of  the  cession  of  Alaska  to  the  United  States, 
Russia  never  asserted  in  fact,  or  exercised  any  exclusive 
jurisdiction  in  Behring  Sea  or  any  exclusive  right  in  the 
seal-fisheries  therein  beyond  the  ordinary  limit  of  territorial 
waters. 

2.  That  Great  Britain  did  not  recognise  or  concede  any 
claim  upon  the  part  of  Russia  to  exclusive  jurisdiction  as 
to  the  seal-fisheries  in  Behring  Sea  outside  of  the  ordinary 
territorial  waters. 

3.  That  the  body  of  water  known  as  Behring  Sea  was 
included  in  the  phrase  "  Pacific  Ocean  "  as  used  in  the  said 
Treaty,  and  that  no  exclusive  rights  as  to  the  seal-fisheries 
therein  were  held  or  e:-  rcised  by  Russia  outside  of  ordinary 
territorial  waters,  after  the  Treaty  of  1825. 

4.  That  all  the  rights  of  Russia  as  to  jurisdiction  and  as 
to  seal-fisheries  in  Behring  Sea  east  of  the  water-boundary 
in  the  Treaty  of  Cession,  did  pass  unimpaired  to  the 
United  States  under  the  said  Treaty. 

5.  That  the  United  States  has  not  any  right  of  protection 
or  property  in  the  fur-seals  frequenting  the  islands  of  the 
United  States  in  Behring  Sea,  when  such  seals  are  found 
outside  the  ordinary  3-mile  limit. 

1  See  Art.  VI.  of  Arbitration  Treaty  in  Appendix  I. 


i 


42 


Tin;  i;i:iiKi\(;  ska  i  il"i;stio\. 


to 


■ 


The  rc7uIations  in  whicli    (Ircat  l^rituin    is  rcviuiic 
concur  are : — 

1.  That  no  seals  !je  killctl  at  any  time  within   a  /one  of 
Co  miles  rtumd  the  I'rihylov  Islands. 

2.  That  a  close  time  he  established,  rnimin,c(  fmm  1st 
Ma\-  to  :;;>t  July  in  each  year,  ilurin-'  which  period  no 
.■'-■al  shall  be  killed  on  the  hi-^h  sea  in  that  part  of  the 
I'acihc  Ocean,  inclusive  of  IJchrin--  Sea,  which  is  situ.itec'  tf) 
the  north  of  the  35th  dvj;rc.c  of  north  latitude  and  .■astuanl 
of  the  i.-:oth  dc:,n-ee  of  loni^itude  from  (ireenwich  til!  it 
strikes  the  watcrd)Mundary  describetl  in  Article  I,  of  the 
Treat\-  of  iSCy^  between  the  L'nited  States  and  Russia,  and 
folIo\\in;_;  that  line  up  to  ISehrinc,^  Straits.' 

3.  'I  hat  fjnly  .•.ailint^  vessels  shall  be  pernn'tted  to  cn;j:aq-c 
in  fur-.-cal  n-hiiiL,r,  even  duriii--  the  period  and  in  the  area  in 
whieli  such  fr-hini;  is  Ie\^a]. 

'I  he  -ub.-,idiar\-  re,i;uIations  pn.\ide  that  these  sailint,^ 
vcs>eN  .-hall  be  licensed,  and  shall  keep  an  aecui'ale  record 
of  their  operation.-.,  and  th.it  no  nets,  lirearms,  or  e.\plosi\-es 
shall  be  u.-,ed  by  the  se.d  lumters,  shot  i^uns  onl\-  cxcejited 
when  u.-ed  durin^,^  the  open  .sea.son  and  out.-,ide  Jiehrm;^ 
Sea. 

After  the  i-^uc  of  the  Arbitiation  has  l)een  re'ached,  it 
ma\-  .^eem  un-racious  to  look  back  npnw  the  ar'_;innc:iits 
advanc.xl  by  either  of  the  disputant.-.  It  is  cnMU-ii  thai 
the  hi-torica!  que>ti(jn.  have  been  an.-uered  in  .1  si'iise 
fax-ourabie  lo  the  ih-itidi  c<jntenlions,  and  that  the  i|ik'sti()ns 
which  iii'.olvethe  a])plie;iti.)n  of  internalionul  l,iv  have  been 
settled  in  iiarmony  willi  authority.  The  decision  of  the 
tribunal  i.-,  un<|uestionai)l\- a  triumph  for  h'.nidand  on  all  the 
quc.-.tioii~  put  in  i-;-,ue.  It  i.-  eciually  certain  that  the  material 
advanta-e  accruiiT:r  from  the  prescrilicd  i-e-,ulatioiis  rests 
with  tile  L'nited  States.  It  was  not  wiihiii  the  p:o\  ince  of 
the  Arij:trators  to  tak'c  coL,mi/,ance  of  the  methods  of  seal- 
killini;  employed  on  land,  nor  were  they  empowered  to 
declare  that  the  close-time  should  apply  to  the  i.^land.s.  Aii 
they  have  found  themselves  able  to  do  is  to  make  a  nnoin- 
meiidation  that  both  Powers  should  de\  ise  and  enforce  some 

'  Sec  Map, 


i 


Till':  i;i;iikiN(;  si;a  ',»ci:sti()X. 


43 


re--iil;iti()iis  fuv  scnlhuntUv^;  both  on  Iriiul  and  within  terri- 
torial waters.'     'I'lic  rcsuU    is  that   the   Ahaska  Company  is 
left   in  the  enjoyment  of  the  sole  ri-iit  to  take  seals  durinc;- 
the  close-time.     The  Companx-'s  j^ractice  in  the  pa-,t  affeirds 
no  --uarantee  that  the  privile'^^e  will  be  used  in  sueh  a  way 
as  to  ensme  the  ])erpetuation  of  the  seal  species,  and  it  is 
more  than   probable  that  when  the  reL,ailations  come  to  be 
re-examined    live  \-ears  hence,  it  will   be  found   necessary  to 
insi>t  uj-on  -,(,me  restriction  of  the  island-catch.      In  another 
l)articular  the  re-ulations  seem  to  be  open  to  ;.;rave  o])iection. 
1  he  Victorian  fishermen  ;,re  now  interdicted  from  cinployin"- 
steamers  or  fireai'ins  in  the  prosecution  of  an  iim.icent  com- 
mercial  enterprise  on   th(;  hi-h   seas,  even  at  tlv^-;e  periods 
when  the  humane   restrictions  of  the  close-time  are  not   in 
force.      Thi-.  provision   e.\tin-ui>hes  a  Canadian  industry  at 
one   blow,  and   ^(uar.intees   that,  for  at   least   five  years,  the 
Alaska  Company  ,slia!l  enjcn-  a  monopoly  that  extends  over 
the  sea  as  well   as  u\er  the   land.      It   protects   the  am'mals 
from  b<  in--  shot  at  >ea  that   tlu'y   mav  be  clubbed  on  shore. 
It  vindicates  n)r  the  I'nitrd  .stuto  a  ri-iit  of  [)ropc'rt\-  which 
the  .\rbitrators  expre.-slv  declared  to  have  no  existence,  and 
lays  the  (  anatlian   .Scalers   under  .i  hea\ier  cmbar^^o  than  if 
iiil    lichrhi-    .Sea  had   been    k-,dly  constituted  a  -'Federal 
preserve." 

It  is  !i,,i  conceixable  that  the  difdculty  now  settled,  or  at 
lea-t   pi, iced   upon  a   b,i-.is   for  settKanent,  could   e\er   have 
cau-ed  a  serious   rupture  bet  '.ecu  two  L;reat  peoples  spruti,-' 
irom  a  c(.)mmon   stock  ai-'   speakin--  a  conmion   lan.^uia.L^e. 
lUit  the  victory  hai-land   h.is  achicned  ou-ht  to  do  some- 
thin--   more   than    Hatter  our  statesmen.      It  ou-ht   to  teach 
them   that  the   true  wa\-  to  win   the   lespect  of  our  kinslolk 
in   the    Cnited   States  and   the  affection  of  our  brothers  in 
C  anada  is  to  show  a  clear  aiiprecialion  of  the  importance  of 
the  issues  that   depend   between   then\  antl   an   unswervin-- 
firmness  in  maiiitaim'iiL,^  what  we  are  satisfied  are  the  riL;hts 
of  our  depcndencx-.      The  seal   fisher\-  is  a  Irille   besitle'lhe 
i,n-eat  fislur_\-  inieicsts  of  Canada  and  Xewfoundluid  on  the 
Atlantic.     'Jhe.se  constitute  a -reat  source  of  national  wealth. 
'  .Si;c  KcconuiiLiKl.Uion-,  p.  5  (. 


44 


TiiF,  i;i;iiKiX(;  si:a  (jukstiox. 


It  is  not  too  much  to  say  that  they  intimatcK-  concern  the 
future  stabiHty  and  security  of  tlie  Miupire,  and  if  the 
-k'hring  Sea  controversv  had  done  nothinq-  more  tiian 
ihustrate  tlic  excessive  jirctensions  which  Canath'ans  have 
to  combat  in  their  elTorts  to  preser\e  tlieir  (greatest  national 
industry,  it  would  have  done  something;"  to  correct  that 
vacillation  antl  incompetence  which  Canadian  fishermen 
ha\-e  t<jo  much  reason  to  regard  as  a  tradition  of  our 
Colonial  polic}'. 


i 


AI'IT.NDIX    I. 


'I'RKA'i'v    i',f;i'\\i:i:x    (irkat    Britain    and    'i'hk 
uxrrKi)  sTAii:s  of   amkkica.   ariu'i'ra'iiox 

RKSl'I'.CllXC,  'VHK  SI'AI.  FISIII'.RIKS  L\  RFIIRIXC'S 
Si;  A. 


S/i;//rif  a/  IJ'as/ii/iq/ou,  Fc/'rna>y  2V),  1892. 


[Rati/iiat!(uis  i\\c/ia/ii:;cd  ,7f  l.oiuion,  Afav  7,  1892.] 

Ilru  \rnicsty  the  (Jikcii  cif  llv  United  KiiiL^doni  of  (Ireat 
liritain  ami  Ireland,  and  the  I'nitcd  States  o\  America,  bein^ 
desirous  to  provide  lor  an  amiralile  setllemerit  of  the  ([uestions 
which  have  arisen  Fetw-  iheir  respective  Oovernnienls  con- 
ceriiin.L;  the  jmisdiciio;i,il  ,  m  the  United  States  in  the  waters 

of  liehrin^'s  S-a,  and  c<>n(  i  1  1,  ai-o  the  preservation  of  i'lp  fui 
seal  in  <>r  haliiiuall\-  rc^ortin.;;  to  the  ■  lid  i-ea.  and  the  r'vj^i-rt,  of 
the  citizens  and  subjects  of  either  coi,  ,;y  as  regards  the  taking  of 
fur-seal  in  or  habitually  resorting;  to  the  sa'  '  waters,  ha  ■  resolved 
to  submit  to  arbitration  the  (|uestions  involved,  anil  to  liie  end  of 
concludin;^'  a  Convention  for  that  purp(i>e  have  appointed  a-  iheir 
respective  I'lenipotemiaries  : 

Her  .Maje^tN-  the  (^Hieen  of  the  United  Kinjiiom  of  (beat 
Rritain  ami  Ireland,  Su-  Julian  i'auncefote,  U.(  M.(b,  R. ('.!!., 
I  ler  Majesty's  Fn\-oy  I'lxtraordinary  and  Minister  IMenipotentiary 
to  the  United  State>  ;  ami  the  President  of  the  United  States  of 
.\merica,  James  (',.  ISlaine,  Secretary  of  State  *^''  "'  United 
States  ; 

Who,  after  havini;  connuunicatcd  to  each  other  tiieir  respective 
Full  i'owers,  which  were  found  to  be  in  due  and  jiroper  form,  have 
agreed  to  and  concluded  the  following  Articles: — 


ARI'lULf:   I. 

'I'lie  (|tiestions  whi(  h  have  arisen  between  the  (lovernment  of 
Her  liritaimic  Majesty  and  the  Uovermnent  of  the  United  States 
concerning  the  jurisdictional  rights  of  the  United  States  in  the 
waters  of  IV-hring's  Sea,  and  <'onccriiing  also  the  j)reservation  of 
the  fur-seal  in  or  habitually  resorting  to  the  said  sea,  and  the  rights 
of  tlie  citi/ens  and  subjicls  of  either  country  as  regards  the  taking 
of  fur-seal  in  or  h.ibitually  resorting  to  the  said  waters,   shall  l)e 


46 


THE   I!KHR1N(;   SKA   ( UIKSTION. 


submitted  to  a  Tribunal  of  Arbitration,  to  be  composed  of  seven 
Arbitrators,  who  shall  be  appointed  in  the  following  manner,  that 
is  to  say:  two  shall  be  named  by  Her  P.ritannic  Majesty;  two 
shall  be  named  by  the  President  of  the  United  States;  his 
Excellency  the  President  of  the  French  Republic  shah  be  jointly 
reejuested  by  the  llijfh  Contractinii;  Parties  to  name  one ;  His 
Majesty  the  King  of  Italy  siiall  be  so  recjuesled  to  name  one;  and 
His  Majesty  the  King  of  Sweden  and  Norway  shall  be  so  requested 
to  name  one.  'I'he  seven  Arbitrators  to  be  so  named  shall  be 
jurists  of  distinguished  reputation  in  their  respective  countries ; 
and  the  selecting  Powers  shall  be  requested  to  choose,  if  possible, 
jurists  who  are  acciuainted  with  the  English  language. 

In  case  of  the  death,  absence,  or  incapacity  to  serve  of  any  or 
either  of  the  said  Arbitrators,  or  in  the  event  of  any  or  either  of 
the  said  Arbitrators  omitting  or  declining  or  ceasing  to  act  as  such, 
Her  Britannic  Majesty,  or  the  President  of  the  United  States,  or 
his  Excellency  the  President  of  the  French  Rei)ublic,  or  His 
Majesty  the  King  of  Italy,  or  His  Majesty  the  King  of  Sweden 
and  Norway,  a^  the  case  may  be,  siiall  name,  or  shall  be  recjuested 
to  name  forthwith,  another  ])erson  to  act  as  Arl)itrat()r  in  the  ])lace 
and  stead  of  the  Arbitrator  originally  named  by  such  head  of  a 
State. 

And  in  the  event  of  the  refusal  or  omission  for  two  months  after 
receipt  of  the  joint  re(iuest  from  the  High  Contracting  Parties  of 
his  Excellency  the  President  of  the  Frencli  Republic,  or  His 
Majesty  the  King  of  Italy,  or  His  Majesty  the  King  of  Sweden 
and  Norway,  to  name  an  Arl)itrator,  eitlier  to  fill  the  original 
appointment  or  to  fill  a  vacancy  as  above  provided,  then  in  such 
case  the  aj^pointment  shall  be  made  or  the  vacancy  shall  be  filled 
in  such  manner  as  the  High  Contracting  Parties  shall  agree. 

ARTICl-lC  II. 

The  Arbitrat(jrs  shall  meet  at  Paris  within  twenty  days  after  the 
delivery  of  the  counter-cases  mentioned  in  Article  IV.,  and  shall 
proceed  impartially  and  carefully  to  examine  and  decide  the  c|ues- 
tions  that  have  been  or  shall  be  laid  before  them  as  herein  pro- 
vided on  the  jiart  of  the  Oovernnients  of  Her  P.ritaimic  Majesty 
and  the  United  States  respectively.  .All  (juestions  considered  by 
the  Tribunal,  including  the  final  decision,  shall  be  determined  by 
a  majority  of  ail  the  .Arbitrators. 

I'^ach  of  the  High  Contracting  ''arties  shall  also  name  one 
person  to  attend  the  Tribunal  as  its  Agent  to  represent  it  generally 
in  all  matters  connected  with  the  aililiation. 

ARTICLi:  III. 

The  printed  Case  of  each  of  the  two  parties,  accompanied  by 
the  documents,  the  official  correspondence,  and  other  evidence  on 
which  each  relies,  shall  be  delivered    in  duplicate  to  each  of  the 


TIIK    DEIIRING   SEA   QUESTION. 


4; 


Arbitrators  and  to  the  A^'ciit  of  the  other  party  as  soon  as  may  be 
after  the  api)ointmcnt  of  the  members  of  the  Tribunal,  but  within 
a  period  not  exceeding  four  months  from  the  date  of  the  exchange 
of  the  ratifications  of  this  Treaty. 

ARTICLE  IV. 

Within  three  months  after  the  delivery  on  both  sides  of  the 
printed  Case,  either  party  may,  in  like  manner,  deliver  in  duplicate 
to  each  of  the  said  Arbitrators,  and  to  the  Agent  of  the  other  party, 
a  counter-case  and  additional  documents,  correspondence,  and 
evidence,  in  reply  to  the  case,  documents,  correspondence,  and 
evidence  so  presented  by  the  other  party. 

If,  ho-.vever,  in  consequence  of  the  distance  of  the  place  from 
which  the  evidence  to  be  presented  is  to  be  procured,  either  party 
shall,  within  thirty  days  after  the  receipt  by  its  Agent  of  the  case 
of  the  other  l^arty,  give  notice  to  the  other  party  that  it  requires 
additional  time  for  the  delivery  of  such  counter-case,  documents, 
correspondence,  and  evidence,  such  additional  time  so  indicated, 
but  not  exceeding  sixty  days  beyond  the  three  months  in  this 
Article  provided,  shall  be  allowed. 

If  in  the  case  submitted  to  the  Arbitrators  either  party  shall  have 
specified  or  alluded  to  any  report  or  document  in  its  own  exclusive 
possession,  without  annexing  a  copy,  such  party  shall  be  bound,  if 
the  other  party  thinks  [)roper  to  apply  for  it,  to  furnish  that  party 
with  a  copy  thereof ;  and  either  [)arty  may  call  upon  the  other, 
through  the  Arbitrators,  to  produce  the  originals  or  certified  copies 
of  any  paj)ers  adduced  as  evidence,  giving  in  each  instance  notice 
thereof  within  thirty  days  after  delivery  of  the  Case  ;  and  the 
original  or  copy  so  rcfjuested  shall  be  delivered  as  soon  as  may 
be,  and  within  a  period  not  exceeding  forty  days,  after  receipt  of 
notice. 

ARTICLE  V. 

It  shall  be  the  duty  of  the  Agent  of  each  party,  within  one 
month  after  the  expiration  of  the  time  limited  for  the  delivery  of 
the  counter-case  on  both  sides,  to  deliver  in  duplicate  to  each  of 
the  said  Arbitrators  and  to  the  Agent  of  the  other  party  a  printed 
argument  showing  the  points  and  referring  to  the  evidence  upon 
which  his  Covernment  relies,  and  either  party  may  also  support 
the  same  betbre  the  Arbitrators  by  oral  argument  of  Counsel;  and 
the  Arbitrators  may,  if  they  desire  further  elucidation  with  regard 
to  any  point,  re(]uire  a  written  or  printed  statement  or  argument, 
or  oral  argument  by  Counsel,  upon  it ;  but  in  such  case  the  other 
party  shall  be  entitled  to  reply  either  orally  or  in  writing,  as  the 
case  may  be. 

ARTICLE  VI. 

In  deciding  the  matters  submitted  to  the  Arbitrators,  it  is  agreed 
that  the  following  five  points  shall  be  submitted  to  them,  in  order 


48 


THE   llEIIRING    SKA   QUESTION. 


that  their  award  sliall  embrace  a  distinct  decision  upon  each  of 
said  five  points,  to  wit : — 

1.  What  exchisive  jurisdiction  in  the  sea  now  known  as  the 
Behrinf^'s  Sea,  and  what  exclusive  rights  in  the  seal  fisheries  therein, 
did  Russia  as^urt  and  exercise  prior  and  up  to  the  time  of  the 
cession  of  Alaska  to  the  United  States  ? 

2.  How  far  were  these  claims  of  jurisdiction  as  to  the  seal 
fisheries  recognised  and  conceded  by  Great  Britain  ? 

3.  Was  the  body  of  water  now  known  as  the  Behring's  Sea 
included  in  the  phrase  "  Pacific  Ocean,"  as  used  in  the  Treaty 
of  1825  between  Great  Britain  and  Russia  ;  and  what  rights,  if 
any,  in  the  Behring's  Sea  were  held  and  exclusively  exercised  by 
Russia  after  said  Treaty  ? 

4.  Did  not  all  the  rights  of  Russia  as  to  jurisdiction  and  as  to 
the  seal  fisheries  in  Behring's  Sea  east  of  the  water  boundary,  in 
the  Treaty  between  the  United  States  and  Russia  of  the  30th 
March  1867,  pass  unimpaired  to  tlie  United  States  under  that 
Treaty  ? 

5.  Has  the  United  States  any  right,  and,  if  so,  what  right,  of 
protection  or  property  in  the  fur-seals  frccpienting  the  islands  of 
the  United  States  in  Behring  Sea  when  such  seals  are  found  out- 
side the  ordinary  3-mile  limit? 

ARTICI-E  VH. 

If  the  determination  of  the  foregoing  questions  as  to  the 
exclusive  jurisdiction  of  the  United  States  shall  leave  the  subject 
in  such  position  that  the  concurrence  of  Great  Britain  is  necessary 
to  the  establishment  of  Regulations  for  the  proper  protection  and 
preservation  of  the  fur-seal  in,  or  habitually  resorting  to,  the 
Behring  Sea,  the  Arbitrators  shall  then  determine  what  con- 
current Regulations  outside  the  jurisdictional  limits  of  the  respec- 
tive Governments  are  necessary,  and  over  what  waters  such 
Regulations  should  extend,  and  to  aid  them  in  that  determination, 
the  Report  of  a  Joint  Commission,  to  be  appointed  by  the 
respective  (Governments,  shall  be  laid  before  them,  with  such 
other  evidence  as  either  Government  may  submit. 

The  High  Contracting  Parties  furthermore  agree  to  co-operate 
in  securing  the  adhesion  of  other  Powers  to  such  Regulations. 

ARTICLE  VIII. 

The  High  Contracting  Parties  having  found  themselves  unable 
to  agree  upon  a  reference  which  shall  include  the  question  of  the 
liability  of  each  for  the  injuries  alleged  to  have  been  sustained  by 
the  other,  or  by  its  citizens,  in  connection  witii  the  claims  pre- 
sented and  urged  by  it ;  and,  being  solicitous  that  this  subordinate 
question  should  not  interrupt  or  longer  delay  the  submission  and 
determination  of  the  main  cjuestions,  do  agree  that  either  may 
submit  to  the  Arbitrators  any  question  of  fact  involved  in  said 


THE    liKHRING    SKA   QUESTION. 


49 


claims,  and  ask  for  a  finding  thereon,  the  question  of  the  liability 
of  either  Government  upon  the  facts  found  to  be  the  subject  of 
further  negotiation. 

ARTICLE  IX. 

The  High  Contracting  Parties  having  agreed  to  appoint  two 
Commissioiiers  on  the  part  of  each  Government  to  make  the  joint 
investigation  and  Report  contemplated  in  the  preceding  Article 
VII.,  and  to  include  the  terms  of  the  said  Agreement  in  the  recent 
Convention,  to  the  end  that  the  joint  and  several  Reports  and 
recommendations  of  said  Commissioners  may  be  in  due  form  sub- 
mitted to  the  Arbitrators,  should  the  contingency  therefor  arise, 
the  said  Agreement  is  accordingly  herein  included  as  follows  :— 

Each  Government  shall  appoint  two  Commissioners  to  investi- 
gate, conjointly  with  the  Commissioners  of  the  other  (iovernnient, 
all  the  facts  having  relation  to  seal-life  in  Behring's  Sea,  and  the 
measures  necessary  for  its  jjroper  protection  and  preservation. 

The  four  Commissioners  shall,  so  far  as  they  may  be  able  to 
agree,  make  a  joint  Report  to  each  of  the  two  Governments,  and 
they  shall  also  report,  either  jointly  or  severally,  to  each  Govern- 
ment on  any  points  upon  which  they  may  be  unable  to  agree. 

These  Reports  shall  not  be  made  public  until  they  shall  be  sub- 
mitted to  the  Arbitrators,  or  it  shall  appear  that  the  contingency 
of  their  b^ing  used  by  the  Arbitrators  cannot  arise. 


r 


ARTICLE  X. 

Each  Government  shall  pay  the  expenses  of  its  members  of  tlie 
Joint  Commission  in  the  investigation  referred  to  in  the  preceding 
Article. 

ARTICLE  XL 

The  decision  of  the  Tribunal  shall,  if  possible,  be  made  within 
three  months  from  the  close  of  the  argument  on  both  sides. 

It  shall  be  made  in  writing  and  dated,  and  shall  be  signed  by 
the  Arbitrators  \\  ho  may  assent  to  it. 

The  decision  shall  be  in  duplicate,  one  copy  whereof  shall  be 
delivered  to  the  Agent  of  Great  Britain  for  his  Government,  and 
the  other  copy  shall  be  delivered  to  the  Agent  of  the  United  States 
for  his  Government. 

ARTICLE  XII. 

Each  Government  shall  pay  its  own  Agent,  and  provide  for  the 
projier  remuneration  of  the  Counsel  employed  by  it  and  of  the 
Arbitrators  appointed  by  it,  and  for  the  expense  of  preparing  and 
submitting  its  case  to  the  Tribunal.  All  other  expenses  connected 
with  the  arbitration  shall  be  defra>ed  b>  the  two  Governments  in 
equal  moieties. 


50 


THE   BEIIKING  SEA  QUESTION. 


ARTICLE  XIII. 


The  Arbitrators  shall  keep  an  accurate  record  of  their  proceedings, 
and  may  appoint  and  employ  the  necessary  officers  to  assist  them. 

ARTICLE  XIV. 

The  High  Contracting  Parties  engage  to  consider  the  result  of 
the  proceedings  of  the  Tribunal  of  Arbitration  as  a  full,  perfect, 
and  final  settlement  of  all  the  questions  referred  to  the  Arbitrators. 

ARTICLE  XV. 

The  present  Treaty  shall  be  duly  ratified  by  Her  Britannic 
Majesty  and  by  the  President  of  the  United  States  of  America,  by 
and  with  the  advice  and  consent  of  the  Senate  thereof;  and  the 
ratifications  shall  be  exchanged  either  at  Washington  or  at  London 
within  six  months  from  the  date  hereof,  or  earlier  if  possible. 

In  faith  whereof,  we,  the  respective  Plenijjotentiaries,  have  signed 
this  Treaty,  and  have  hereunto  affixed  our  seals. 

Done  in  duplicate,  at  Washington,  the  29th  day  of  February 
1892. 

(L.S.)  JULIAN  PAUNCEFOTE. 

(L.S.)  JAMES  G.  BLAINE. 


APPENDIX    II. 

The  following  is  the  text  of  the  Award  which  is  dated  15th 
August  1893.  The  preliminary  clauses  reciting  the  terms  of  the 
Arbitration  Treaty  are  omitted,  as  well  as  the  findings  upon  the 
facts  involved  in  Great  Britain's  claim  for  compensation  in  respect 
of  the  vessels  seized. 

♦  ****♦** 

"And  whereas  the  President  of  the  United  States  of  America 
named  the  Honourable  John  M.  Harlan,  Justice  of  the  Supreme 
Court  of  the  United  States,  and  the  Honourable  John  T.  Morgan, 
Senator  of  the  United  States,  to  be  two  of  the  said  Arbitrators ; 
and  Her  Britannic  Majesty  named  the  Right  Honourable  Lord 
Hannen  and  the  Honourable  Sir  John  U'hompson,  Minister  of 
Justice  and  Attorney-General  for  Canada,  to  be  two  of  the  said 
Arbitrators ;  and  his  Excellency  the  President  of  the  French 
Republic  named  the  Baron  de  Courcel,  Senator,  Ambassador  of 
France,  to  be  one  of  the  said  Arbitrators ;  and  his  Majesty  the 
King  of  Italy  named  the  Marquis  Emilio  Visconti  Venosta,  former 
Minister  of  Foreign  Affairs  and  Senator  of  the  kingdom  of  Italy,  to 
be  one  of  the  said  Arbitrators ;  and  His  Majesty  the  King  of 
Sweden  and  Norway  named  M.  Gregers  Gram,  Minister  of  State, 
to  be  one  of  the  said  Arbitrators  ; 


■■ 


TIIF.   liKHRING   SEA  QUESTION, 


51 


"  And  whereas  we,  the  said  Arbitrators,  having  duly  met  at  Paris, 
have  proceeded  impartially  and  carefully  to  examine  and  decide 
all  the  questions  submitted  to  us,  the  said  Arbitrators,  under  the 
said  treaty  laid  before  us,  as  provided  in  the  said  treaty  on  the 
part  of  the  Government  of  Her  IJritannic  Majesty  and  of  the 
United  States  respectively ; 

"  Now  we,  the  said  Arbitrators,  having  impartially  and  carefully 
examined  the  said  questions,  do,  in  like  manner  by  this  our  award, 
decide  and  determine  the  said  questions  in  manner  following — 
that  is  to  say,  we  decide  and  determine  as  to  the  five  points  men- 
tioned in  Article  VI.,  as  to  which  our  award  is  to  embrace  a 
distinct  decision  upon  each  of  them, 

"As  to  the  first  of  the  said  five  points,  we,  the  said  Baron  de 
Courcel,  Mr  Justice  Harlan,  Lord  Hannen,  Sir  John  Thompson, 
Marquis  Visconti  Venosta,  and  M.  Gregers  Gram,  being  a  majority 
of  the  said  Arbitrators,  do  decide  and  determine  as  follows : — 

"  By  the  Ukase  of  1 82 1  Russia  claimed  jurisdiction  in  the  sea  now 
known  as  the  Behring  Sea  to  the  extent  of  100  Italian  miles  from 
the  coasts  and  islands  belonging  to  her,  but  in  the  course  of  the 
negotiations  which  led  to  the  conclusion  of  the  treaties  of  1824 
with  the  United  States  and  of  1825  with  Great  Britain,  Russia 
admitted  that  her  jurisdiction  in  the  said  sea  should  be  restricted 
to  the  reach  of  cannon  shot  from  shore,  and  it  appears  that  from 
that  time  up  to  the  time  of  the  cession  of  Alaska  to  the  United 
States,  Russia  never  asserted  in  fact  or  exercised  any  exclusive 
jurisdiction  in  Behring  Sea,  or  any  exclusive  rights  in  the  seal 
fisheries  therein  beyond  the  ordinary  limit  of  territorial  waters. 

"  As  to  the  second  of  the  said  five  points,  we,  the  said  Baron  de 
Courcel,  Mr  Justice  Harlan,  Lord  Hannen,  Sir  John  Thompson, 
Marquis  Visconti  Venosta,  and  M.  Gregers  Gram,  being  a  majority 
of  the  said  Arbitrators,  do  decide  and  determine  that  Great  Britain 
did  not  recognise  or  concede  any  claim  upon  the  part  of  Russia  to 
exclusive  jurisdiction  as  to  the  seal  fisheries  in  Behring  Sea  outside 
of  ordinary  territorial  waters. 

"  As  to  the  third  of  the  said  five  points,  as  to  so  much  thereof  as 
requires  us  to  decide  whether  the  body  of  water  now  known  as  the 
Behring  Sea  was  included  in  the  phrase  "  Pacific  Ocean,"  as  used 
in  the  treaty  of  1825  between  Great  Britain  and  Russia,  we,  the 
said  Arbitrators,  do  unanimously  decide  and  determine  that  the 
body  of  water  now  known  as  the  Behring  Sea  was  included  in  the 
phrase  "  Pacific  Ocean,"  as  used  in  the  said  treaty.  And  as  to  so 
much  of  the  said  third  point  as  requires  us  to  decide  what  rights, 
if  any,  in  the  Behring  Sea  were  held  and  exclusively  exercised  by 
Russia  after  the  said  treaty  of  1825,  we,  the  said  Baron  de  Courcel, 
Mr  Justice  Harlan,  Lord  Hannen,  Sir  John  Thompson,  Marquis 
Visconti  Venosta,  and  M.  Gregers  Gram,  being  a  majority  of  the 
said  Arbitrators,  do  decide  and  determine  that  no  exclusive  rights 
of  jurisdiction  in  Behring  Sea  and  no  exclusive  rights  as  to  the  seal 
fisheries  therein  were  held  or  exercised  by  Russia  outside  of  ordi- 
nary territorial  waters  after  the  treaty  of  1825. 


5^ 


THE   MKIIRING   SKA   QUESTION. 


"  As  to  the  fourth  of  the  said  five  points,  wc,  the  said  Arbitrators, 
do  unanimously  decide  and  determine  that  all  the  rights  of  Russia 
as  to  jurisdiction  and  as  to  the  seal  fisheries  in  Hehring  Sea  east 
of  the  water  boundary  in  the  treaty  between  the  United  States  and 
Kussia  of  March  30,  1867,  did  pass  unimpaired  to  the  United 
States  under  the  said  treaty. 

"As  to  the  fifth  of  the  said  five  points,  we,  the  said  Baron  de 
Courcel,  Lord  Hannen,  Sir  John  'I'hompson,  Manjuis  Visconti 
Venosta,  and  M.  (Jregers  (Iram,  being  a  majority  of  the  said 
Arbitrators,  do  decide  and  determine  that  the  United  States  has 
not  any  right  of  protection  or  jmjperty  in  the  fur-seals  freciucnting 
the  islands  of  the  United  States  in  jiehring  Sea  when  such  seals 
are  found  outside  the  ordinary  three-mile  limit. 

"  And  whereas  the  aforesaid  determination  of  the  foregoing  ques- 
tion as  to  the  exclusive  jurisdiction  of  the  United  States  mentioned 
in  Article  VI.  leaves  the  subject  in  such  a  jjosition  that  the  con- 
currence of  Great  Britain  is  necessary  to  the  establishment  of 
regulations  for  the  proper  protection  and  ]ireservation  of  the  fur- 
seal  in  or  habitually  resorting  to  the  Behring  Sea,  the  Tribunal 
having  decided  by  a  majority  as  to  each  Article  of  the  following 
regulations,  we,  the  said  Baron  de  Courcel,  Lord  Hannen, 
Marquis  Visconti  Venosta,  and  M.  (Iregcrs  Oram,  assenting  to  the 
whole  of  the  nine  Articles  of  the  following  regulations,  and  being 
a  majority  of  the  said  Arbitrators,  do  deride  and  determine,  in  the 
mode  provided  by  the  treaty,  that  the  following  concurrent  regula- 
tions outside  the  jurisdictional  limits  of  the  respective  Govern- 
ments are  necessary,  and  that  they  should  extend  over  the  waters 
hereinafter  mentioned,  that  is  to  say  : — 

ARTICLE  L 

The  Governments  of  the  United  States  and  of  Great  Britain 
shall  forbid  th(;ir  citizens  and  subjects  respectively  to  kill,  capture, 
or  pursue,  at  any  time  and  in  any  manner  whatever,  the  animals 
commonly  called  fur-seals  within  a  zone  of  60  miles  around  the 
Pribyloff  Islands,  inclusive  of  the  territorial  waters. 

The  miles  mentioned  in  the  preceding  paragraph  are  geographical 
miles  of  60  to  a  degree  of  latitude. 

ARTICLE  II. 

The  two  Governments  shall  forbid  their  citizens  and  sub- 
jects respectively  to  kill,  capture,  or  pursue,  in  any  manner 
whatever,  during  the  season  extending  each  year  from  the  ist  of 
May  to  the  31st  of  July,  both  inclusive,  the  fur-seals  on  the  high 
sea  in  that  part  of  the  Pacific  Ocean,  inclusive  of  the  Behring  Sea, 
which  is  situated  to  the  north  of  the  35th  degree  of  North  latitude 
and  eastward  of  the  180th  degree  of  longitude  from  Greenwich  till 
it  strikes  the  water  boundary  described  in  Article  I.  of  the  Treaty 
of  1867  between  the  United  States  and  Russia,  and  following  that 
line  up  to  Behring  Straits. 


■^ 


THE    RKHklNG    SEA    (QUESTION. 


53 


ARTICLE  III. 

During  the  i)eriod  of  time,  and  in  the  waters  in  which  the  fur- 
seal  fishing  is  allowed,  only  sailing  vessels  shall  be  permitted  to 
carry  on  or  take  part  in  fur-seal  fishing  operations.  They  will, 
however,  be  at  liberty  to  avail  themselves  of  the  use  of  such  canoes 
or  undecked  boats,  propelled  by  paddles,  oars,  or  sails  as  are  in 
common  use  as  fishing  boats. 

ARTICLE  IV. 

Each  sailing  vessel  authorised  to  fish  for  fur-seals  must  be  pro- 
vided with  a  special  licence  issued  for  that  purpose  by  its  Govern- 
ment, and  shall  be  required  to  carry  a  distinguishing  flag  to  be 
prescribed  by  its  Government. 

ARTICLE  V. 

The  masters  of  the  vessels  engaged  in  fur-seal  fishing  shall  enter 
accurately  in  their  official  log-book  the  date  and  place  of  each  fur- 
seal  fishing  operation,  and  also  the  number  and  sex  of  the  seals 
captured  upon  each  day.  These  entries  shall  be  communicated 
by  each  of  the  two  Governments  to  the  other  at  the  end  of  each 
fishing  season. 

ARTICLE  VI. 

The  use  of  nets,  firearms,  and  explosives  shall  be  forbidden  in 
the  fur-seal  fishing.  This  restriction  shall  not  apply  to  shot  guns 
when  such  fishing  takes  pla^'e  outside  of  Behring  Sea  during  the 
season  when  it  may  be  lawfully  carried  on. 

ARTICLE  VII. 

The  two  Governments  shall  take  measures  to  control  the  fitness 
of  the  men  authorised  to  engage  in  fur-seal  fishing  These  men 
shall  have  been  proved  fit  to  handle  with  sufficient  skill  the 
weapons  by  means  of  which  this  fishing  may  be  carried  on. 


ARTICLE  VIII. 

The  regulations  contained  in  the  preceding  articles  shall  not 
apply  to  Indians  dwelling  on  the  coasts  of  the  territory  of  the 
United  States  or  of  Great  Britain,  and  carrying  on  fur-seal  fishing 
in  canoes  or  undecked  boats  not  transported  by  or  used  in  con- 
nection with  other  vessels,  and  propelled  wholly  by  paddles,  oars, 
or  sails,  and  manned  by  not  more  than  five  persons  each,  in  the 
way  hitherto  practised  by  the  Indians,  provided  such  Indians  are 
not  in  the  employment  of  other  persons,  and  provided  that,  when 
so  hunting  in  canoes  or  undecked  boats,  they  shall  not  hunt  fur- 
seals  outside  of  territorial  waters  under  contract  for  the  delivery  of 
the  skins  to  any  person. 


54 


THE  BEIIRING   SEA  QUESTION. 


This  exemption  shall  not  be  construed  to  affect  the  municipal 
law  of  either  country,  nor  shall  it  extend  to  the  waters  of  Uehring 
Sea  or  the  waters  of  the  Aleutian  passes. 

Nothing  herein  contained  is  intended  to  interfere  with  the  em- 
ployment of  Indians  as  hurtters  or  otherwise  in  connection  with  fur- 
sealing  vessels  as  heretofore. 


ARTICLE  IX. 

The  concurrent  regulations  hereby  determined  with  a  view  to 
the  protection  and  preservation  of  the  fur-seals  shall  remain  in 
force  until  they  have  been  in  whole  or  in  part  abolished  or  modi 
fied  by  common   agreement   between   the  Governments  of  the 
United  States  and  of  (ireat  Britain. 

The  said  concurrent  regulations  shall  be  submitted  every  five 
years  to  a  new  examination,  so  as  to  enablt;  both  interested  Govern- 
ments to  consider  whether,  in  the  light  of  past  experience,  there  is 
occasion  for  any  modification  thereof. 


Appended  to  the  Award  are  the  following  recommendations 
made  by  the  Arbitrators  to  the  Governments  of  the  United  States 
and  Great  Britain. 

"  I.  The  Arbitrators  declare  that  the  concurrent  regulations  as 
determined  upon  by  the  Tribunal  of  Arbitration  by  virtue  of 
Article  VII.  of  the  Treaty  of  the  29th  of  February  1892,  being 
applicable  to  the  high  sea  only,  should,  in  their  opinion,  be 
supplemented  by  other  regulations  applicable  within  the  limits  of 
the  sovereignty  of  each  of  the  two  Powers  interested  and  to  be 
settled  by  their  common  agreement. 

"  2.  In  view  of  the  critical  condition  to  which  it  appears  certain 
that  the  race  of  fur-seals  is  now  reduced  in  consequence  of 
circumstances  not  fully  known,  the  .Arbitrators  think  fit  to 
recommend  both  Governments  to  come  to  an  understanding  in 
order  to  prohibit  any  killing  of  fur-seals,  either  on  land  or  at  sea, 
for  a  period  of  two  or  three  years,  or  at  least  one  year,  subject  to 
such  exceptions  as  the  two  Governments  might  think  proper  to ' 
admit  of. 

"  Such  a  measure  might  be  recurred  to  at  occasional  intervals 
if  found  beneficial. 

"  3.  The  Arbitrators  declare,  moreover,  that,  in  their  opinion, 
the  carrying  out  of  the  regulations  determined  upon  by  the 
Tribunal  of  Arbitration  should  be  assured  by  a  system  of  stipula- 
tions and  measures  to  be  enacted  by  the  two  Powers,  and  that 
the  Tribunal  must  in  consequence  leave  it  to  the  two  Powers  to 
decide  upon  the  means  for  giving  effect  to  the  regulations  deter- 
mined upon  by  it." 


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